3 All] Sri Anil Kumar Gupta & Anr. Vs. Pawan Kumar Singh & Ors.

1155

APPELLATE JURISDICTION to avail any other remedy available to

CRIMINAL SIDE them under law, if so advised, in wake of
DATED: ALLAHABAD 09.09.2015 the law laid down by the Apex Court in
Midnapore's case (supra), wherein it has
BEFORE been held that if the High Court, in a
THE HON'BLE BALA KRISHNA NARAYANA, J. contempt proceeding, decides an issue or
THE HON'BLE MRS. VIJAY LAKSHMI, J. makes any direction, relating to the merits
of the dispute between the parties, the
Contempt Appeal No. 4 of 2014 aggrieved person is not without remedy
and he can challenge it by means of intra
court appeal if the order is of Single Judge
Sri Anil Kumar Gupta & Anr. ...Appellants
and by seeking special leave to appeal
Versus
under Article 136 of the Constitution of
Pawan Kumar Singh & Ors. Respondents
India in other cases, but not by way of
filing an appeal under Section 19 of the
Counsel for the Appellants: Contempt of Courts Act.
Sri Neeraj Upadhyay, Sri Piyush Shukla,
Sri Ramesh Upadhyay, C.S.C. Case Law discussed:
(2000) 4 Supreme Court Cases 400; (2006) 5
Counsel for the Respondents: SCC 399; (2006) 2 SCC 282; 2014 STPL (Web)
Sri V.K. Singh, Sri G.K. Singh, Sri H.P. 70 SC; (2005) 3 UPLBEC 2415; (2011) 12 SCC
Sahi 736; (2005) 7 SCC 406; (2002) 5 SCC 406;
(2002) 5 SCC 352; Contempt No. 1782 of
2013; 1996 (4) SCC 411; (2006) 5 SCC 399;
Contempt of Court Act 1971-Section 19-
(2005) 3 UPLBEC 2415; (2000) 4 Supreme
Contempt Appeal-maintainability against
Court Cases 400; (1988) 3 SCC 26; (1996) 4
order-requiring appellant to appear in
SCC 411; (1978) 2 SCC 370; (2009) 2 SCC
person-without indication that charge
641; Contempt Appeal No. 7 of 2009.
shall be framed-held-being interlocutory
order-appeal not maintainable.
(Delivered by Hon'ble Mrs. Vijay
Held: Para-18 Lakshmi, J.)
By the impugned order, the appellants
have merely been summoned in the Court. 1. The present appeal, under Section
The impugned order does not even say 19 of the Contempt of Courts Act, 1971,
anything that on the date fixed, charges
would be framed against them. Even if
has been filed by Principal Secretary
assuming that their personal appearance Home, Government of U.P. Lucknow and
was required for framing of charges Director General of Police, U.P. Lucknow,
against them in the contempt proceeding, questioning the legality and correctness of
but there is absolutely no indication that the order dated 05.03.2014, passed by
by the impugned order, the learned Single learned Single Judge of this Court in Civil
Judge has imposed any punishment on the
Misc. Contempt Petition No. 1140 of 2009;
appellants for contempt. Hence, in view of
the well settled legal position as discussed Pawan Kumar Singh & others Vs. Kunwar
above, we have no doubt in holding that Fateh Bahadur Singh, Principal Secretary,
the impugned order is an interlocutory Lucknow & others, whereby the learned
order against which an appeal under Single Judge, while observing that a prima
Section 19 of the Contempt of Courts Act, facie case of non compliance of the
1971 is not maintainable. Therefore, the
judgment of the writ Court is made out,
present appeal is liable to be dismissed as
not maintainable. However, the appellants has directed both the appellants to remain
are not remediless and they are at liberty present before the Court on the date fixed.
1156 INDIAN LAW REPORTS ALLAHABAD SERIES

2. Heard Sri Ramesh Upadhyay, dismissal of the Special Leave Petition as

learned Chief Standing Counsel, assisted withdrawn is that the judgement of the
by Sri Neeraj Upadhyay, learned writ Court stands affirmed and its
Additional Chief Standing Counsel and implementation is to be considered.
Sri Piyush Shukla, learned Standing The effect of the termination orders
Counsel, for the appellants and Sri G.K. being quashed would be that there was no
Singh, assisted by Sri H.P. Sahi, learned termination order in the eye of law and
counsel for the respondents. Perused the the terminated employees would be
record. deemed to be in continuous service and
entitled to all consequential benefits. It is
3. The order assailed in this appeal, not an issue that all the terminated
for convenience, is quoted below:- constables have been reinstated w.e.f.
27.5.2009 and they are receiving their
"Heard learned counsel for the salary ever since then. The only issue
applicants and Sri Ramesh Upadhyay, which remains to be considered is as to
learned Chief Standing Counsel, whether they would be entitled to
representing the Principal Secretary uninterrupted service benefits from the
(Home), U. P. Government, Lucknow and date of entering into service and also with
the Director General of Police, U.P., regard to their entitlement to payment of
Lucknow. salary / back wages for the period they
Services of about 20,000 constables have remained under termination i.e.
of civil police (including the applicants) from the date of termination till the date
were terminated enmass in the year 2007 of reinstatement.
by a couple of Government orders. The According to Sri Upadhyay the
Government orders were challenged by judgement of the writ Court has been fully
way of large number of writ petitions complied with and nothing further
which were clubbed together and the writ remains to be implemented. Learned
Court vide order dated 8th December, Chief Standing Counsel has relied upon
2008 allowed the writ petitions and large number of decisions of the Apex
quashed the Government orders whereby Court and this Court in support of his
the termination had been directed. The argument that until and unless the Court
State Government preferred intra court while allowing the writ petition had also
appeals which were also dismissed by the directed for award of back wages and
Division Bench on 4th March, 2009. consequential benefits, there can be no
Thereafter contempt proceedings were claim or justification for payment of back
initiated. In the meantime the State wages. Further according to him this is
Government filed Special Leave Petition also the stand taken by the State as is
before the Apex Court and ultimately apparent from the affidavit dated
under interim order of the Apex Court 03.03.2014 duly sworn by the Special
dated 25.5.2009 the terminated constables Secretary (Home).
were given appointment letters and were On the other hand learned counsel
allowed to join on 27.05.2009. for the applicants submitted that once
Subsequently the Special Leave Petition termination had been quashed all the
has been got dismissed as withdrawn by terminated employees were entitled to full
the State on 3.3.2013. The effect of the back wages and consequential benefits as
3 All] Sri Anil Kumar Gupta & Anr. Vs. Pawan Kumar Singh & Ors. 1157

the writ Court had not given any direction Sri Upadhyay, learned Chief
for reducing their back wages on the Standing Counsel accepts the notices on
principle of no work no pay. It is also their behalf and shall communicate them
case of the applicants that writ Court had of this order.
found that the termination enmass by the List this case on 13th March, 2014.
Government was illegal and once On the said date the Principal
termination was held to be illegal, Secretary (Home) and the Director
applicants would be entitled to all the General of Police, U.P. Lucknow would
benefits. It has also been submitted that remain present before this Court.
the applicants and all other constables in A copy of this order may be provided to
any case would be entitled to their salary Sri Ramesh Kumar Upadhyay, learned Chief
from the date of judgement of the writ Standing Counsel, free of costs within 24
Court. The Division Bench as also the hours for necessary compliance."
Supreme Court had dismissed the intra
Court appeal and the Special Leave 4. At the very outset, learned counsel
Petition. for the respondents Sri G.K. Singh has
It may be an arguable case that raised a preliminary objection with regard to
applicants may not be entitled to back wages the maintainability of this contempt appeal.
for the period when the orders for In this respect, learned counsel for the
termination were in force but there can be no respondents has drawn our attention to the
issue that applicants would not be entitled to report of Stamp Reporter dated 10th March,
the salary from the date of judgement of the 2014, according to which this contempt
writ Court. Thus, prima facie case of non appeal is not maintainable. Apart from this,
compliance of the judgement of the writ learned counsel for the respondents has
Court is made out. Accordingly, the placed before us the following judgments of
Principal Secretary (Home), U.P. Lucknow Hon'ble Supreme Court in support of his
and the Director of General of Police, U.P. contention:-
Lucknow need to be summoned. Since this
matter is engaging attention of the Midnapore Peoples' Co-op. Bank
Government for quite some time, learned Ltd. and others Vs. Chunilal Nanda and
Advocate General and learned Chief others (2006) 5 SCC 399.
Standing Counsel have already appeared on Nand Lal Yadav v. Raja Ram and
a number of occasions and the stand taken others (Contempt Appeal (Criminal) No.
by them has already come on record it is not 1 of 2010).
necessary to issue formal notices to the S.M.A. Abdi, the Principal Secretary
present Principal Secretary (Home) and the (Law) Government of Uttar Pradesh and
Director General of Police. another v. Private Secretaries
Sri Anil Kumar Gupta, present Brotherhood and another 2009 (4) AWC
Principal Secretary (Home) has already 4026.
been arrayed as opposite party no.7. Dr. Lalji Singh & others v. Dr. Anil
Upon oral request learned counsel for the Kumar Chauhan (Contempt Appeal No. 6
applicant is permitted to implead Sri of 2014).
Anand Lal Banerjee, Director General of
Police, U.P. Lucknow, as opposite party 5. Sri Ramesh Upadhyay, learned
no.8 during the course of the day. Chief Standing Counsel on the other hand
1158 INDIAN LAW REPORTS ALLAHABAD SERIES

has submitted that the appeal is made qua entitlement, same has not been
maintainable in view of the law laid down adverted to in its correct perspective and
by the Apex Court in case of R.N. Dey what has not been provided for in the
and others v. Bhagyabati Pramanik and judgment, in the threat of contempt
others, (2000) 4 Supreme Court Cases proceeding same is being sought to be
400. He has also placed reliance on the awarded, and ignoring the stand of State,
judgment rendered in Midnapore Peoples' opinion has been formed for awarding
Coop Bank Ltd and others Vs. Chunilal salary and Officers of State, for its
Nanda and others (2006)5 SCC 399, implementation are being summoned in
wherein the Apex Court has carved out an Court for framing of the charges whereas
exception by holding that appeal is there is an application moved by the
maintainable where such direction is appellants for discharge taking stand that
incidental to or inextricably connected order stands complied with in its words
with the order punishing for contempt. and spirit. Summoning of incumbents in
Learned Chief Standing Counsel has person is nothing but arm twisting device.
drawn our attention to the earlier order of Specific query has been raised to
this Court passed in this appeal on both the counsels, as to whether, Hon'ble
12.3.2014, which is reproduced below:- Apex Court on any subsequent occasion
has clarified the situation, as to in what
"On the matter being taken up today, contingency, case in question would fall
preliminary objection has been raised in within the category of incidental to or
regard to maintainability of appeal in inextricably connected with the order
question. punishing for contempt. The answer has
Sri. R.N. Singh, Senior Advocate has been in negative.
contended that as per settled law in the Issue requires consideration by this
case of Midnapore Peoples' Coop Bank Court as to whether case in hand falls
Ltd and others Vs. Chunilal Nanda and within the category of incidental to or
others (2006)5 SCC 399, appeal can be inextricably connected with the order
filed only when jurisdiction to punish for punishing for contempt.
contempt has been exercised and only In view of the same, it is necessary to
exception that has been carved out where answer this question, as such list this case
such direction is incidental to or for final hearing on 4.4.2014. Record of
inextricably connected with the order single judge be summoned and no further
punishing for contempt only then appeal action be taken till that date."
under Section 19 of the Contempt of
Courts Act, 1971 an encompass such a 6. Sri Upadhyay has further
situation, and the case in hand is not at submitted that the impugned order clearly
all falling under such an exception. comes within the purview of the
Sri V.C. Mishra, Senior Advocate/ exception carved out by the Apex Court
Advocate General, assisted by Sri Ramesh in Midnapore's case (supra) because a
Upadhya, Chief Standing Counsel on the definite opinion has been formed by
other hand contended that case in hand learned Single Judge that contempt of
falls within the exception that has been court has been committed by the State and
carved out by Supreme Court as here in the officers of the State have been
spite of precise submission having been summoned in the Court for framing of
3 All] Sri Anil Kumar Gupta & Anr. Vs. Pawan Kumar Singh & Ors. 1159

charges against them. Learned Chief vehemently argued that the judgment
Standing Counsel has also placed reliance dated 8.12.2008, passed by the writ Court
on the following judgments in support of is totally silent on the issue whether the
the his contention. terminated Constables, who have been
reinstated, are entitled for back wages or
A.P. SRTC & another vs. B.S. David not. He has submitted that the contempt
Paul; (2006) 2 SCC 282. court is not entitled to decide this issue by
reviewing the judgment of writ Court. He
Sudhir Vasudeva vs. M. George has drawn our attention to the following
Ravishekaran & others; 2014 STPL paragraphs of the impugned order,
(Web) 70 SC. wherein the learned Single Judge has
Director of Education, Uttaranchal observed as under:
and others vs. Ved Prakash Joshi &
others; (2005) 3 UPLBEC 2415. "......It is not an issue that all the
Abdul Gani Bhat Vs. Chairman, terminated constables have been
Islamia College Governing Board and reinstated w.e.f. 27.5.2009 and they are
others; (2011) 12 SCC 736. receiving their salary ever since then. The
Rajasthan State Road Transport only issue which remains to be considered
Corporation vs. Shyam Bihari Lal Gupta; is as to whether they would be entitled to
(2005) 7 SCC 406. uninterrupted service benefits from the
Jhareswar Prasad Paul and another date of entering into service and also with
vs. Tarak Nath Ganguly and others; regard to their entitlement to payment of
(2002) 5 SCC 352. salary / back wages for the period they
Harendra Maurya and 79 others vs. have remained under termination i.e.
Shri R.M. Srivastava (Contempt No. 1782 from the date of termination till the date
of 2013). of reinstatement.
State of Maharastra vs. Mahboob S. It may be an arguable case that
Allibhoy and others; 1996 (4) SCC 411. applicants may not be entitled to back
Midnapore Peoples' Co-op. Bank wages for the period when the orders for
Ltd. And others vs. Chuni Lal Nanda and termination were in force but there can be
others; (2006) 5 SCC 399. no issue that applicants would not be
entitled to the salary from the date of
7. The appellants have challenged judgement of the writ Court. Thus, prima
the validity of the impugned order mainly facie case of non compliance of the
on the ground that the contempt Court judgement of the writ Court is made out.
cannot traverse beyond the order or Accordingly, the Principal Secretary
cannot test the correctness or otherwise of (Home), U.P. Lucknow and the Director
the order giving additional directions or of General of Police, U.P. Lucknow need
delete any direction as it would amount to to be summoned....."
exercising review jurisdiction. Placing
reliance on the law laid down by the 8. Relying on the judgment rendered
Hon'ble Supreme Court in the case of in Ved Prakash Joshi's case (supra) Sri
Director of Education, Uttaranchal v. Ved Upadhyay has contended that if the writ
Prakash Joshi (2005) 3 UPLBEC 2415, Court is silent on the issue of payment of
learned Chief Standing Counsel has back wages to the reinstated employees,
1160 INDIAN LAW REPORTS ALLAHABAD SERIES

the contempt Court has no jurisdiction to reference, decides to take action and
decide this issue by reviewing the initiate proceedings for contempt and if
judgment of the writ Court. the order is passed not discharging the
rule issued in contempt proceedings, it
9. In Ved Prakash Joshi's case would be an order or decision in exercise
(supra), the Hon'ble Supreme Court, while of its jurisdiction to punish for contempt.
setting aside the order passed by Against such order appeal would be
Allahabad High Court in Civil Misc. maintainable.
Contempt Application No. 3797 of 1998
held as under:- 11. We have given our thoughtful
consideration to various pleas advanced
".......The Court exercising contempt by learned counsel for the parties.
jurisdiction cannot take upon itself power
to decide the original proceedings in a 12. The present contempt appeal has
manner not dealt with by the Court arisen in the backdrop of the facts that
passing the judgment or order. Right or services of about 20,000 Constables of
wrong the order has to be obeyed. Civil Police (including the appellants)
Flouting an order of the Court would were terminated en-mass in the year 2007
render the party liable for contempt. by a couple of Government Orders. Those
While dealing with an application for Government Orders were challenged by
contempt the Court cannot traverse way of large number of writ petitions,
beyond the order, non-compliance of which were clubbed together and the writ
which is alleged. In other words, it cannot Court vide order dated 8.12.2008 allowed
say what should not have been done or the writ petitions and quashed the
what should have been done. It cannot Government Orders, whereby the
traverse beyond the order. It cannot test termination had been directed. The State
correctness or otherwise of the order or Government preferred intra court appeals
give additional direction or delete any against the order of Single Judge, which
direction. That would be exercising were also dismissed by the Division
review jurisdiction while dealing with an Bench on 4.3.2009. The State
application for initiation of contempt Government filed Special Leave Petition
proceedings. The same would be before the Apex Court and under interim
impermissible and indefensible. In that order of the Apex Court dated 25.5.2009,
view of the matter, the order of the High the terminated Constables were given
Court is set aside." appointment letters and were allowed to
join their services on 27.5.2009.
10. Learned Chief Standing Counsel Subsequently, the Special Leave Petition
has submitted that the appeal against the got dismissed as withdrawn by the State
impugned order is maintainable in view of on 3.3.2013. The effect of the dismissal of
the law laid down by Supreme Court in the Special Leave Petition as withdrawn
case of R.N. Dey and others v. was that the judgment of the writ Court
Bhagyabati Pramanik and others, (2000) 4 stood affirmed. However, when the
Supreme Court Cases 400, in which the judgment of writ Court was not complied
Apex Court has held that when the court by the State in its letters and spirit,
either suo motu or on a motion or a contempt proceedings were initiated
3 All] Sri Anil Kumar Gupta & Anr. Vs. Pawan Kumar Singh & Ors. 1161

before this Court by means of filing Civil Government of U.P. Lucknow and
Misc. Contempt Petition No. 1140 of Director General of Police, U.P. Lucknow
2009. In the aforesaid contempt petition, in Court on 13.3.2014 personally vide
the learned Single Judge on 20.5.2009 impugned order.
after a detailed discussion of the matter,
held as under: 14. As the respondents have raised a
preliminary objection on the
"The Court is left with no option but maintainability of this contempt appeal,
to record its satisfaction that a prima the issue regarding the maintainability of
facie case for willful disobedience and the appeal is to be decided at the first
total non-compliance of the judgment of instance.
this Court is made out. The opposite
parties no. 2 to 6 are directed to remain 15. Section 19 of the Contempt of
present before this Court on the next date Courts Act, 1971 provides that an appeal
which is being fixed as 27.5.2009 for shall lie as of right from any order or
framing of the charges. decision of High Court in the exercise of
At this stage on the request of the its jurisdiction to punish for contempt.
learned Advocate General one more Section 19 of the Contempt of Courts Act,
opportunity is given to the opposite 1971 read thus:-
parties to make compliance of the
judgment of this Court by the next date "19. Appeals.--(1) An appeal shall lie
fixed failing which they shall appear as of right from any order or decision of
before this Court. In case of compliance High Court in the exercise of its
having been made and an affidavit to that jurisdiction to punish for contempt--
effect being filed by the Principal (a) where the order or decision is
Secretary, Department of Home, that of a single Judge, to a Bench of not
Government of U.P. their personal less than two Judges of the Court;
appearance would not be necessary. (b) where the order or decision is
List on 27.5.2009. that of a Bench, to the Supreme Court:"
A copy of the order may be provided
to Sri M.C. Chaturvedi, learned Chief 16. There is a plethora of judgments
Standing Counsel free of cost within 48 of Hon'ble Supreme Court on the law
hours for necessary compliance and to the regarding maintainability of contempt
other parties on payment of usual charges appeal.
within the same time."
1. In D.N. Taneja v. Bhajan Lal
13. The record shows that despite (1988) 3 SCC 26, the three judge bench of
having ample time and opportunity, when Hon'ble Supreme Court has held that "an
the State did not comply the order dated appeal will lie under Section 19(1) of the
8.12.2008, passed in Civil Misc. Writ Act only when the High Court makes an
Petition No. 45645 of 2007, the learned order or decision in exercise of its
Single Judge of this Court, finding that jurisdiction to punish for contempt. The
prima facie case of non compliance of High Court exercises its jurisdiction or
judgment of the writ Court was made out, power as conferred on it by Article 215 of
summoned the Principal Secretary Home, the Constitution when it imposes a
1162 INDIAN LAW REPORTS ALLAHABAD SERIES

punishment for contempt. When the High independently from an order of punishing
Court does not impose any punishment on for contempt."
the alleged contemnor, it does not 6. In Smt. Sudha Shukla v. Ausan
exercise its jurisdiction or power to and others, Contempt Appeal No. 7 of
punish for contempt under Article 215." 2009, decided on 26.05.2009, this Court
2. In State of Maharashtra vs. has observed as under:-
Mahboob S. Alibhoy (1996) 4 SCC 411, "....unless any adverse order having
the Hon'ble Apex Court has held that immediate effect causing injury is passed,
"words 'any order' must be read with that cannot be appealed either by filing
'decision' so as to exclude any contempt appeal or even by filing Special
interlocutory order of the High Court Appeal if it is not so provided."
from scope of appeal. Unless by the order 7. In Tamilnad Mercantile Bank
High Court imposes punishment in Shareholders Welfare Association's case
exercise of its jurisdiction to punish for (supra), the Apex Court has approved the
contempt, no appeal will lie against it." judgments of the Calcutta High Court
3. In Purshotam Dass Goel v. B.S. rendered in the case of Ashoke Kumar
Dhillon (1978) 2 SCC 370, the Hon'ble Rai v. Ashoke Arora and another (96
Apex Court has held that "the order or CWN 278), wherein it has been held as
decision appealed against under section under:-
19 must be such that it decides some bone "The right of appeal will be available
of contention raised before the High Court under Sub- section (1) of Section 19 only
affecting the right of the party aggrieved. against any decision or order of a High
Mere initiation of a proceeding for Court passed in the exercise of its
contempt by the issuance of the notice on jurisdiction to punish for contempt. In this
the prima facie view that the case is a fit connection, it is pertinent to refer to the
one for drawing up the proceeding, does provision of Article 215 of the
not decide any question." Constitution which provides that every
4. In Parents Assn. of Students' v. High Court shall be a Court of record and
M.A. Khan (2009) 2 SCC 641, it has been shall have all the powers of such a Court
held by Hon'ble Apex Court that special including the power to punish for
appeal from interim order passed by contempt of itself. Article 215 confers on
Single Judge in exercise of contempt the High Court the power to punish for
jurisdiction if, in view of provisions of contempt of itself. In other words, the
Section 19 of the Contempt of Courts Act, High Court derives its jurisdiction to
is not maintainable. (Allahabad High punish for contempt from Article 215 of
Court Rules, 1952, Ch. VIII Section B). the Constitution. As has been noticed
5. In S.M.A. Abdi's case (supra), this earlier, an appeal will lie under Section
Court has held as follows:- 19(1) of the Act only when the High Court
makes an order or decision in exercise of
"It is not to be emphasised that right its jurisdiction to punish for contempt. It
of appeal is a creature of statute and is submitted on behalf of the respondent
unless the law specifically provides for and, in our opinion rightly, that the High
filing the appeal, that cannot be permitted. Court exercises its jurisdiction or power
Any order or decision as referred in as conferred on it by Article 215 of the
Section 19 of the Act cannot be read Constitution when it imposes a
3 All] Sri Anil Kumar Gupta & Anr. Vs. Pawan Kumar Singh & Ors. 1163

punishment for contempt. When the High IV. Any direction issued or decision
Court does not impose any punishment on made by the High Court on the merits of a
the alleged contemner, the High Court dispute between the parties, will not be in
does not exercise its jurisdiction or power the exercise of "jurisdiction to punish for
to punish for contempt. The jurisdiction of contempt" and, therefore, not appealable
the High Court is to punish. When no under Section 19 of the CC Act. The only
punishment is imposed by the High Court, exception is where such direction or
it is difficult to say that the High Court decision is incidental to or inextricably
has exercised its jurisdiction or power as connected with the order punishing for
conferred on it by Article 215 of the contempt, in which event the appeal under
Constitution....." Section 19 of the Act, can also encompass
8. In Midnapore's case (supra) the incidental or inextricably connected
Hon'ble Supreme Court, after a detailed directions.
discussion of its several earlier judgments V. If the High Court, for whatsoever
has summed up the matter with the reason, decides an issue or makes any
following observations:- direction, relating to the merits of the
"The position emerging from these dispute between the parties, in a contempt
decisions, in regard to appeals against proceedings, the aggrieved person is not
orders in contempt proceedings may be without remedy. Such an order is open to
summarized thus:- challenge in an intra-court appeal (if the
"I. An appeal under Section 19 is order was of a learned Single Judge and
maintainable only against an order or there is a provision for an intra-court
decision of the High Court passed in appeal), or by seeking special leave to
exercise of its jurisdiction to punish for appeal under Article 136 of the
contempt, that is, an order imposing Constitution of India (in other cases)."
punishment for contempt.
II. Neither an order declining to 17. In wake of the several
initiate proceedings for contempt, nor an pronouncements of Hon'ble Supreme
order initiating proceedings for contempt Court and also of this Court, cited above
nor an order dropping the proceedings and considering the facts and
for contempt nor an order acquitting or circumstances of the present case, in our
exonerating the contemnor, is appealable considered opinion, it cannot be said that
under Section 19 of the CC Act. In special by the order impugned, any punishment
circumstances, they may be open to has been imposed on the appellants.
challenge under Article 136 of the
Constitution. 18. By the impugned order, the
III. In a proceeding for contempt, the appellants have merely been summoned in
High Court can decide whether any the Court. The impugned order does not even
contempt of court has been committed, say anything that on the date fixed, charges
and if so, what should be the punishment would be framed against them. Even if
and matters incidental thereto. In such a assuming that their personal appearance was
proceeding, it is not appropriate to required for framing of charges against them
adjudicate or decide any issue relating to in the contempt proceeding, but there is
the merits of the dispute between the absolutely no indication that by the
parties. impugned order, the learned Single Judge has
1164 INDIAN LAW REPORTS ALLAHABAD SERIES

imposed any punishment on the appellants for State of U.P. ...Opp. Parties
contempt. Hence, in view of the well settled
legal position as discussed above, we have no Counsel for the Applicant:
doubt in holding that the impugned order is an Sri Sanjay Mishra, Sri I.M. Khan, Sri
interlocutory order against which an appeal Neeraj Singh, Sri Upendra Kumar Singh
under Section 19 of the Contempt of Courts
Act, 1971 is not maintainable. Therefore, the Counsel for the Respondents:
A.G.A.
present appeal is liable to be dismissed as not
maintainable. However, the appellants are not Criminal Appeal-conviction based upon
remediless and they are at liberty to avail any confession of co-accused-held-not proper-
other remedy available to them under law, if reasons discussed.
so advised, in wake of the law laid down by
the Apex Court in Midnapore's case (supra), Held: Para-35 & 37-
wherein it has been held that if the High 35. Perusal of the aforementioned case
laws makes it abundantly clear that the
Court, in a contempt proceeding, decides an confession of co-accused cannot be
issue or makes any direction, relating to the made basis for conviction. The reason
merits of the dispute between the parties, the behind is that the said confession was
aggrieved person is not without remedy and recorded by the police officer while the
he can challenge it by means of intra court maker was in police custody. The second
appeal if the order is of Single Judge and by reason is that the accused has no
opportunity to test the same through
seeking special leave to appeal under Article
cross-examination nor evidence of such
136 of the Constitution of India in other cases, maker of the confession is recorded in
but not by way of filing an appeal under his presence. Thus so far as the five
Section 19 of the Contempt of Courts Act. appellants (from whom or on whose
pointing out no recovery has been made)
19. Accordingly, the appeal is are concerned, the trial court was
swayed away by the seriousness of the
dismissed.
offence and also by the fact that the
appellants have a very strong criminal
20. No order as to costs. background. But this, by itself, cannot be
-------- a ground to hold a person guilty. If the
APPELLATE JURISDICTION independent witnesses would have
CRIMINAL SIDE cooperated the prosecution and would
DATED: ALLAHABAD 23.09.2015 have supported the case of the
prosecution then the position would
BEFORE have been different. The apathy of the
THE HON'BLE SURENDRA VIKRAM SINGH public in cooperating the prosecution is a
RATHORE, J. great hurdle in the effective
THE HON'BLE RAGHVENDRA KUMAR, J. administration of criminal justice and
because of this apathy of the public, the
Criminal Appeal No. 552 of 2009 courts are left with no option but to
acquit the hardened criminals accused of
along with
heinous offences.
Criminal Appeal No. 550 of 2009, No. 551
of 2009, No. 611 of 2009; No. 282 of 37. Law is settled on the point that no
2009, No. 327 of 2009 and 4596 of 2013 person can be convicted unless and until
the prosecution succeeds in proving its
Santosh alias Neta Khatik ...Applicant case beyond reasonable doubt against
Versus the accsued persons. Since the only
3 All] Santosh alias Neta Khatik Vs. State of U.P. 1165

evidence available against the above- Ramesh and Criminal Appeal No. 4596 of
named five accused was either their own 2013 has been preferred by appellant
confession or confession of co-accused,
Rakesh.
therefore, keeping in view the legal
pronouncement of Hon'ble the Apex
Court, mentioned above, the conviction 3. Heard Mr. S.K. Dwivedi and Mr.
of these five appellants, rendered by the Upendra Kumar Singh, learned counsel
trial court become unsustainable under for the appellants, learned A.G.A. for the
law. Accordingly Criminal Appeal No. 552 State and perused the lower court record.
of 2009 preferred by Santosh alias Neta
Khatik Criminal Appeal No. 550 of 2009
preferred by appellant Pappu alias (B) Sentence imposed by trial court:
Fakku, Criminal Appeal No. 551 of 2009
preferred by appellant Nankai, Criminal 4. Under challenge in the aforesaid
Appeal No. 327 of 2009 preferred by criminal appeals is the judgment dated
appellant Ramesh and Criminal Appeal
No. 4596 of 2013 preferred by appellant
17.12.2008 and order dated 18.12.2008
Rakesh deserve to be allowed. passed by the learned Additional Sessions
Judge, Court No. 4, Fatehpur in Sessions
Case Law discussed: Trial No. 1108 of 2001 arising out of
AIR 2011 SC 2283; (2011) 14 SCC 117; (2011) Case Crime No. 101 of 2001, Police
11 SCC 724; (2014) 10 SCC 264; AIR 1964 SC Station Husainganj, District Fatehpur
1184; (2012) 4 SCC 722; (2013) 13 Supreme
Court Cases 1; (2014) 13 SCC 90; (2012) 7
whereby all the aforesaid appellants were
Supreme Court Cases 646; (2007) 4 SCC 266; convicted for the offence under Section
(2007) 8 Supreme Court Cases 254; (2011) 10 364 I.P.C. and they were sentenced with
Supreme Court Cases 165; (2014) 5 Supreme imprisonment for life and also with fine
Court Cases 509. of Rs. 5,000/- each with default
stipulation of three months additional
(Delivered by Hon'ble Surendra Vikram imprisonment. All the appellants were
Singh Rathore, J.) convicted for the offence under Section
379 I.P.C. and were sentenced with
1. Since all the aforesaid criminal imprisonment of three years. They were
appeals arise out of common judgment, further convicted for the offence under
therefore, these are being simultaneously Section 302/149 I.P.C. and were
decided by a common judgment. sentenced with imprisonment for life and
also with fine of Rs. 5,000/- each with
2. Criminal Appeal no. 552 of 2009 default stipulation of three months
has been preferred by appellant Santosh additional imprisonment and also
alias Neta Khatik, Criminal Appeal No. convicted for the offence under Section
550 of 2009 has been preferred by 201 I.P.C. and each of them were
appellant Pappu alias Fakku, Criminal sentenced with imprisonment for five
Appeal No. 551 of 2009 has been years each and also with fine of Rs.
preferred by appellant Nankai, Criminal 5,000/- each with default stipulation of
Appeal No. 611 of 2009 has been three months additional imprisonment.
preferred by Kallan, Criminal Appeal No. Appellant Kallan, in Criminal Appeal No.
282 of 2009 has been preferred by Phool 611 of 2009, was also convicted for the
Chandra, Criminal Appeal No. 327 of offence under Section 411 I.P.C. and was
2009 has been preferred by appellant sentenced with three years imprisonment.
1166 INDIAN LAW REPORTS ALLAHABAD SERIES

All the sentences were directed to run while S.O. Maksudan Singh, along with
concurrently. By the same judgment, other police personnel, was busy in the
accused persons, namely, Ram Swaroop, search of the accused persons and the
Jagroop and Naresh were acquitted of the victims and reached at the Bhitaura road at
charges levelled against them. It was Tiraha, then S.O. got a secret information
directed that the recovered sheeps, goats, that three miscreants are going from the
horse and calf be directed to handed over road towards Nauwagaon and from there
to the successors of the deceased persons. they will go to Kolkata on trucks.
Immediately police party took the informer
(C) Facts as narrated in the F.I.R.: with them and went towards the place as
informed by the informer. When these
5. In brief, the case of the persons reached near the culvert of canal
prosecution was that complainant Jugal then they saw that three persons were going
Kishore lodged a F.I.R. at Police Station by the side of the canal. Seeing the police
Husainganj on 9.6.2001 at 13:00 hours party, the miscreants leaving the animals
alleging therein that complainant had started running away. The police party with
asked (1) Chinni Pal, (2) Bheda Pal (3) the help of Bal Kishan, Ram Raj arrested
Ram Raj Pal, (4) Narendra Pal, (5) appellant Kallan. The other appellants,
Chhote Lal Pal, (6) Jitendra Pal and (7) namely, Khalil and Mehandi Hasan were
Ram Prasad Pal to keep their sheeps in his successful in fleeing away from there. They
field for manuring. On 8.6.2001, above- were recognized by the witnesses and the
named seven persons had come to the police personnel. From the possession of
house of the complainant to take ration appellant Kallan 700 sheeps (300 female +
for them. On 9.6.2001 when the 200 male and 200 lambs) and one small
complainant went to his field then he horse and calf and five goats were
found that neither the above named recovered. Accused Kallan was enquired
persons were there nor their sheeps and about the recovered animals then he
animals were there. Their belongings and disclosed that he along with his other
their clothes were scattered in the field. companions Khalil, Mehandi Hasan, Pappu
One dog was also sitting in the field, who alias Fakku and Phool Chandra with five
was barking at the persons. These other miscreants, who were brought by
circumstances raised a suspicion in the Pappu alias Fakku and were not known to
mind of the complainant that the above- appellant Kallan, had assembled at the
named seven persons have been abducted house of Phool Chandra where from they
and animals have been stolen. went to Gram Chhauwa where the sheeps
were sitting in the field. Pappu alias Fakku
(D) Facts revealed during and Phool Chandra were armed with
Investigation: country made pistols. In the said field there
were eight shepherds. All were sleeping in
6. After registration of the case, the the field. Out of eight shepherds, seven
investigation proceeded. The Investigating were abducted by them and the 8th one was
Officer went to the place of occurrence and successful in fleeing away from there.
took the scattered belongings of the above- Appellants Kallan, Khalil, Mehandi Hasan
named seven persons and its recovery took the animals towards Nauwagaon and
memo was prepared. On the same day, other accused persons took seven abducted
3 All] Santosh alias Neta Khatik Vs. State of U.P. 1167

persons towards Gaya. The recovery memo Phool Chandra that appellant Pappu alias
was accordingly prepared and the recovered Fakku, with axe caused the death of three
animals were handed over to Bal Kishan, shepherds and remaining four shepherds
memo to this effect was also prepared in the were thrown in the well in the same
presence of Ram Raj and Bal Kishan. On condition with their hands tied and other
the very next day i.e. on 10.6.2001, the three injured shepherds were also thrown in
police party was engaged in the search of the same well. Phool Chandra also offered
the remaining accused persons and also of that he can get the dead bodies of all the
abducted persons. When the police party seven persons recovered. So the police party
reached at 7 Mill Chauraha, then they got an asked appellant Phool Chandra to sit in the
information through secret informer that jeep and as pointed out by Phool Chandra,
one of the miscreant named Phool Chandra came to the Raano well. Because of the
was standing near 7 Mill Canal Culvert mud on the way, the jeep was stopped and
waiting for a transport and by immediate from there they went on foot to the said
action, he can be arrested. The police party well. Accused Phool Chandra was ahead of
left the jeep there and went along with the the police party and told the police party
informer to the place where accused Phool that this is the well in which they have
Chandra was present. The informer pointed thrown all the seven persons. Thereafter the
towards the said person and at about 11:00 police party made arrangement of several
a.m., he was taken into custody by the persons of the village and with the help of
police. He disclosed his name as Phool hook and rope and with the help of one
Chandra. He was enquired about the Sheetala Prasad Dwivedi, who went inside
remaining accused persons and also about the well, all the seven dead bodies were
the abducted persons. Initially he avoided to taken out. In the meantime, one Sant Ram
disclose anything but subsequently he and Durjan, who are relatives of one of the
disclosed that in the intervening night of deceased reached there and identified the
8/9.6.2001 he along with Kallan, Khalil, dead bodies. A fard (Ex. Ka-6) was
Mehandi Hasan, Pappu alias Fakku, prepared on 10.6.2001. Inquest proceedings
Santosh alias Neta Khatik, Rakesh and of all the seven dead bodies were conducted
Ramesh went to village Chhibuwa and in and the dead bodies were sent for
the night at about 11:00 p.m., they abducted postmortem.
seven shepherds while they were sleeping in
the field. One of the shepherds, was (E) Result of Postmortem:
successful in making good his escape. They
took the seven shepherds, after tying their The postmortem on the dead body of
hands and closing their eyes, with them. Medha was conducted on 11.6.201 at 3:15
However, Kallan, Khalil and Mehandi p.m. and following injuries were found on
Hasan were asked by him to take the sheeps his person:-
towards Nauwagaon and they will come (i) Lacerated wound 15 c.m. x 6 c.m.
and join them after disposing of the seven x bone deep on left side head, 8 c.m. away
shepherds. The second group, under the from left ear. Left parietal bone fractured.
leadership of appellant Phool Chandra, took (ii) Abrasion 4 c.m. x 5 c.m. on right
seven abducted shepherds to Raano well wrist joint.
near Mahadevpur. At that time, it was 12:00 (iii) Abrasion 4 c.m. x 3 c.m. on left
in the night. It was disclosed by appellant wrist joint.
1168 INDIAN LAW REPORTS ALLAHABAD SERIES

Postmortem on the body of Ram Raj p.m. and no ante mortem injuries were
Pal was conducted on the same day at visible on his body.
3:45 p.m. and following injuries were In the opinion of the doctor, the
found on his person:- cause of death of these four persons was
asphyxia as a result of ante mortem
(i) Lacerated wound 8 c.m. x 2 c.m. x drowning.
bone deep on right side head, 5 c.m. away
from right ear. Right parietal bone was 8. After concluding the
fractured. investigation, charge sheet was filed
against all the seven accused persons,
7. Postmortem on the body of whose names emerged during
Chinni was conducted on the same day at investigation.
4:10 p.m. and following injuries were
found on his person:- (F) Defence of appellants:

(i) Lacerated wound 6 c.m. x 3 c.m. x 9. The case of the appellants was of
bone deep on left side head, 9 c.m. away total denial and their false implication.
from left ear. Right and left parietal bones Appellant Phool Chandra has also pleaded
were fractured that his father was murdered by the police
(ii) Lacerated wound 2 c.m. x 1 c.m. and the police has falsely implicated him
x gone deep on left side head, 7 c.m. away in this case because an F.I.R. was lodged
from left ear. against police personnel for the murder of
his father.
In the opinion of the doctor, the
cause of death of all above-named three (G) Prosecution evidence:
persons was due to comma as a result of
ante-mortem head injuries and duration 10. In order to prove its case, the
was two and a half days old. prosecution has examined PW-1 Jugal
Postmortem on the body of deceased Kishore, who has lodged the F.I.R. PW-2 is
Bhaiya Lal was conducted on the same Bal Krishan, as per case of the prosecution,
day at 2:30 p.m. and following injuries initially the recovered animals were given in
were found:- the custody of this witness. PW-3 is
(i) Abrasion 6 c.m. x 4 c.m. on right Dhunni, as per prosecution case, appellant
forearm above right wrist joint. Phool Chandra was arrested in his presence
and in his presence on his pointing out, the
Postmortem on the body of Chhote dead bodies were recovered. PW-4
Lal was conducted on the same day at Bhagwati was also a witness of the same
4:30 p.m. and no ante mortem injury was fact. PW-5 Sheetala Prasad Dwivedi, is the
seen on his body. person, who had assisted the police party in
Postmortem on the body of Ram taking out the dead bodies from the well.
Prasad was conducted on the same day at PW-6 Sant Raj, is also a witness of the
3:30 p.m. and no external ante mortem recovery of seven dead bodies from the
injury was seen on the body. well. PW-7 Babu Lal, he is the 8th
Postmortem on the body of Narendra shepherd, who was successful in fleeing
was conducted on the same day at 5:00 away from the place of occurrence. PW-8 is
3 All] Santosh alias Neta Khatik Vs. State of U.P. 1169

Daya Shankar, he is the witness on the point crime register Ex. Kha-1 and Kha-2. On
that he saw the accused persons taking away the strength of the said register, he has
the abducted persons in the night. PW-9 stated that a F.I.R. was lodged on
Ram Raj, is a witness regarding recovery of 29.9.1996 by Nankai son of Vindeshwari
700 sheeps and other animals from the and after the investigation, C.O. Sadar,
possession of appellant Kallan. PW-10 Ram District Fatehpur had filed final report in
Kishan, is the witness regarding recovery of the said case, which was accepted vide
scattered articles of seven abducted persons order dated 4.12.1997. The said F.I.R.
from the field of complainant Jugal Kishore. was lodged against six named police
All these independent witnesses except the personnel and 18 other police personnel
complainant have not supported the case of of Police Station Hussainganj.
the prosecution and have been declared
hostile. PW-11 is S.O. Madhusudan Singh, (I) Finding of the trial court:
who has recovered the animals from the
possession of appellant Kallan and also 12. After appreciating the evidence
arrested appellant Phool Chandra, thereafter on available on record, learned trial court
recovered seven dead bodies on his pointing has convicted the accused appellants as
out. PW-12 Nand Kishore, has stated that above, hence these criminal appeals.
on 13.6.2001, recovered animals were given Howsever, accused Ram Swaroop,
in his custody from the first Supurdar Bal Jagroop and Naresh were acquitted.
Kishan and he has supported this part of the Allegation against these three acquitted
prosecution case and he has also produced persons was that they were asked to make
the said recovered shepherds before the arrangement of trucks and the only
court during trial. PW-13 S.I. Ranveer evidence against them was confession of
Singh, is the Investigating Officer of this co-accused Pappu alias Fakku.
case. PW-14 is Dr. P.A. Lari, who had
conducted the postmortem on the dead (J) Submissions on behalf of the
bodies of Merha Pal, Ram Raj Pal, Ginni appellants:
Pal and Jitendra Pal. PW-15 Dr. A.S. Khan,
who has conducted postmortem on the dead 13. Submission of learned counsel for
bodies of Chhote Lal Pal, Narendra Pal and the appellants was that in the instant case,
Ram Prasad Pal, PW-16 Head Constable recovery is alleged to have been made only
Amit Kumar, who has prepared chik report from the possession of appellant Kallan and
and G.D. of this case and PW-17 is S.I. dead bodies were recovered on the pointing
R.K. Mishra, who had conducted the out of appellant Phool Chandra, therefore,
inquest proceedings of seven dead bodies the only evidence against remaining five
under the supervision of S.O. Madhusudan appellants was the confession of the accused
Singh. appellants Kallan and Phool Chandra
whereby they have named these appellants.
(H) Defence evidence: Since the said confession does not stand
corroborated by any other evidence, so the
11. On behalf of appellant Phool same cannot be made basis for conviction of
Chandra, DW-1 Head Moharir Shiv these appellants. So far as appellants Phool
Bhawan Singh was examined in his Chandra and Kallan are concerned, learned
defence, who has proved the extract of counsel for these appellants have argued that
1170 INDIAN LAW REPORTS ALLAHABAD SERIES

apart from the evidence of police personnel, false implication and the recoveries.
not even a single independent witness has Appellant Kallan could not furnish any
supported the factum of recovery or the explanation regarding recovery of such
arrest of the appellants. No independent huge quantity of animals from his
witness has supported the factum of recovery possession and he has nowhere claimed
of dead bodies on the pointing out of the that he was the owner of these animals. It
appellant Phool Chandra. In this background, has also been argued that appellant Phool
the sole evidence of police personnel cannot Chandra has stated that his father was
be treated to be wholly reliable. It has further murdered by the police personnel,
been submitted that except the evidence of therefore, he has been falsely implicated
these police witnesses there is no evidence to in this case. It is submitted that DW-1 has
connect the appellants Kallan and Phool stated that the said F.I.R. was lodged on
Chandra with this case. The prosecution has 29.9.1996 for an offence of murder
proposed to prove its case on the basis of the alleged to have been committed on
circumstantial evidence produced by the 24.9.1996. After investigation of the said
prosecution. The chain of circumstances was case it was found to be false and final
not complete. The trial court only on the report was filed which was accepted on
basis of the recovery from the possession of 4.12.1997. So the said report cannot be
appellant Kallan and Phool Chandra has the reason for false implication as the said
drawn an inference that they are the persons, F.I.R. was lodged by Nankai, brother of
who are responsible for the death of seven appellant. So the trial court has right
persons and only on the strength of such convicted the appellants.
shaky evidence, has convicted the appellants.
Thus, the judgment of the trial court becomes (L) Discussion of evidence and legal
unsustainable under law as learned trial court points involved:
has given undue weightage to the evidence
of police personnel and has not appreciated 15. In view of the rival submissions,
the evidence in accordance with the settled we have considered prosecution evidence.
principles of appreciation of evidence. Before proceeding further in the matter,
we would like to address ourselves
(K) Submission on behalf of the regarding the standard of proof, which is
State: required to prove a case based on
circumstantial evidence.
14. Learned A.G.A. has submitted
that the trial court has recorded the (L i) Standard of proof required in
conviction keeping in view the evidence cases of circumstantial evidence:
available against the appellants and also
keeping in view the pronouncement of 16. Hon'ble the Apex Court in the
Hon'ble the Apex Court in some cases and case of S.K. Yusuf v. State of West
the said approach of the trial court cannot Bengal reported in AIR 2011 SC 2283 in
be said to be illegal or irregular. It was a para 26 has held as under:
very serious offence wherein seven
persons were done to death brutally. "Undoubtedly, conviction can be
Appellant Kallan and Phool Chandra based solely on circumstantial evidence.
could not furnish any explanation for their However, the court must bear in mind while
3 All] Santosh alias Neta Khatik Vs. State of U.P. 1171

deciding the case involving the commission complete that there is no escape from the
of serious offence based on circumstantial conclusion that within all human
evidence that the prosecution case must probability the crime was committed by
stand or fall on its own legs and cannot the accused and none else; and
derive any strength from the weakness of the (iv) the circumstantial evidence in
defence case. The circumstances from which order to sustain conviction must be
the conclusion of guilt is to be drawn should complete and incapable of explanation of
be fully established. The facts so established any other hypothesis than that of the guilt
should be consistent only with the hypothesis of the accused and such evidence should
of the guilt of the accused and they should not only be consistent with the guilt of the
not be explainable on any other hypothesis accused but should be inconsistent with
except that the accused is guilty. The his innocence."
circumstances should be of a conclusive Though a conviction may be based
nature and tendency. There must be a chain solely on circumstantial evidence,
of evidence so complete as not to leave any however, the Court must bear in mind the
reasonable ground for the conclusion aforesaid tests while deciding a case
consistent with the innocence of the accused involving the commission of a serious
and must show that in all human probability offence in a gruesome manner.
the act must have been done by the accused."
18. Hon'ble the Apex Court in the
17. Hon'ble the Apex Court in the case of Manthuri Laxmi Narsaiah Vs.
aforesaid case has followed its earlier State of A.P. reported in (2011) 14 SCC
pronouncements in the following cases: 117 has held in paragraph no. 6 as under:-

"Sharad Birdhichand Sarda v. State of "6. It is by now well settled that in a

Maharashtra AIR 1984 SC 1622, Krishnan case relating to circumstantial evidence
v. State represented by Inspector of Police the chain of circumstances has to be spelt
(2008) 15 SCC 430 and Wakkar and another out by the prosecution and if even one link
v. State of Uttar Pradesh (2011) 3 SCC 306." in the chain is broken the accused must
In the case of Haresh Mohandas Rajput get the benefit thereof. We are of the
v. State of Maharashtra 2011 (12) SCC 56, opinion that the present is in fact a case
Hon'ble Apex Court following its earlier of no evidence."
decision in the case of Krishnan v. State
represented by Inspector of Police (2008) 15 19. Likewise in the case of
SCC 430 observed that when a case rests Mustkeem Vs. State of Rajasthan reported
upon circumstantial evidence, such evidence in (2011) 11 SCC 724 Hon'ble the Apex
must satisfy the following tests: Court in paragraph no. 24 has held as
"(i) the circumstances from which an under:-
inference of guilt is sought to be drawn,
must be cogently and firmly established; "24. In a most celebrated case of this
(ii) those circumstances should be Court, Sharad Birdhichand Sarda Vs.
definite tendency unerringly pointing State of Maharashtra (1984) 4 SCC 116
towards guilt of the accused; in para 153, some cardinal principles
(iii) the circumstances, taken regarding the appreciation of
cumulatively, should form a chain so circumstantial evidence have been
1172 INDIAN LAW REPORTS ALLAHABAD SERIES

postulated. Whenever the case is based on allegation has been made against any
circumstantial evidence the following person and the complainant has simply
features are required to be complied with. informed the police that the sheeps and
It would be beneficial to repeat the same shepherds were missing and their
salient features once again which are as belongings were lying scattered in his
under: (SCC p. 185) field. The purpose of F.I.R. is very limited
The circumstances from which the and it is only to set the criminal law into
conclusion of guilt is to be drawn must or motion. The complainant must have come
should be and not merely "may be" fully to know this fact only when he would
established; have visited his field. Thus delay in F.I.R.
The facts so established should be becomes immaterial.
consistent only with the hypothesis of the
guilt of the accused, that is to say, they 21. In the instant case, investigation
should not be explainable on any other revealed that in the intervening night of
hypothesis except that the accused is 8/9.6.2001, seven persons were abducted
guilty; from the field of complainant Jugal
the circumstances should be of a Kishore and their animals, which
conclusive nature and tendency; contained 700 sheeps and some other
they should exclude every possible animals were stolen. This offence was
hypothesis except the one to be proved; committed under the leadership of
and appellant Phool Chandra. The
There must be a chain of evidence so investigation revealed that all the accused
complete as not to leave any reasonable persons assembled at the house of
ground for the conclusion consistent with appellant Phool Chandra. Thereafter they
the innocence of the accused and must went to the field of complainant Jugal
show that in all human probability the act Kishore, abducted seven shepherds and
must have been done by the accused." have stolen their 700 sheeps and some
The aforementioned judgments have other animals. They went towards
been followed in a recent judgment in the Nauwagaon where appellant Phool
case of Sangili alias Sanganathan Vs. Chandra made a separate party of three
State of Tamilnadu reported in (2014) 10 accused persons under the leadership of
SCC 264. appellant Kallan and asked them to go
towards Nauwagaon and told them that he
20. Keeping in view the shall soon join them after disposing of
aforementioned legal proposition, the these seven abducted persons. Appellant
evidence of the prosecution has to be Phool Chandra came along with other
appreciated. In the instant case, none was accused persons and brought seven
named in the F.I.R. The F.I.R. was lodged abducted persons to Ranewell where
on the next day at about 1:00 p.m. at the some of the abducted persons were given
Police Station Husainganj, which was blows with axe and thereafter all the
situated at a distance of about one seven persons were thrown into the well
kilometer. It is true that the F.I.R. was of Ranewell. Appellant Kallu was arrested
slightly delayed in the instant case. The on the very next day of the incident on
delay in lodging the F.I.R. has absolutely 9.6.2001 at about 11:00 p.m. in the night
no relevance because in the F.I.R. no and thereafter on the next day, on
3 All] Santosh alias Neta Khatik Vs. State of U.P. 1173

10.6.2001 appellant Phool Chandra was record a conviction. On this point, learned
arrested and after his arrest, on his counsel for the appellants has placed
pointing out, the dead bodies of seven reliance on the pronouncement of
abducted persons were recovered. Perusal Constitution Bench of Hon'ble the Apex
of the record shows that after registration Court in the case of Haricharan Kurmi,
of the case, a message was flashed Jogia Hajam Vs. State of Bihar reported
through R.T. Set regarding this incident in AIR 1964 SC 1184. Our attention was
that seven persons have been abducted drawn towards the following part of the
along with their animals and S.O. during judgment, which reads as under:-
investigation got the information about
the same through his secret informers. "As we have already indicated, this
question has been considered on several
22. Thus in the instant case, there are occasions by judicial decisions and it has
definitely two different sets of accused been consistently held that a confession
persons. One is of appellant Phool Chandra cannot be treated as evidence which is
and appellant Kallan. Appellant Kallan was substantive evidence against a co-accused
arrested by the police and from his person. In dealing with a criminal case
possession the stolen animals were where the prosecution relies upon the
recovered. Likewise, appellant Phool confession of one accused person against
Chandra was also arrested by the police and other accused person, the proper approach
on the basis of his information, a recovery to adopt is to consider the other evidence
under Section 27 of the Indian Evidence Act against such an accused person, and if the
was made and seven dead bodies were said evidence appears to be satisfactory
recovered. The other set of five remaining and the court is inclined to hold that the
appellants stands on different footing. said evidence may sustain the charge
Nothing incriminating is alleged to have framed against the said accused person,
been recovered from their possession. The the court turns to the confession with a
name of six accused persons came into light view to assure itself that the conclusion
in the statement of co-accused persons, who which it is inclined to draw from the other
were arrested by the police. So the case of evidence is right. As was observed by Sir
both the set of accused persons has to be Lawrence Jenkins in Emperor v. Lalit
dealt with separately. Regarding the accused Mohan Chockerburty, ILR 38 Cal 559 a
persons, who were either not arrested by the confession can only be used to "lend
police or from whose possession, nothing assurance to other evidence against a co-
incriminating is alleged to have been accused". In Periyaswami Moopan v.
recovered, it has been submitted that the only Emperor. ILR 54 Mad 75 Reilly, J.,
evidence available against them was either observed that the provision of S. 30 goes
their own confession or confession of the not further than this, "where there is
accused persons made in the police custody. evidence against the co-accused
Apart from it, there is no other evidence to sufficient, "if believed, to support his
connect them with the instant offence. conviction, then the kind of confession
described in S. 30 may be thrown into the
23. Submission is that the scale as a additional reason for believing
confession of the co-accused person, by that evidence." In Bhuboni Sahu v. The
itself, cannot be held to be sufficient to King, 76 Ind App. 147 the Privy Council
1174 INDIAN LAW REPORTS ALLAHABAD SERIES

has expressed the same view. Sir. John upon or the same should be discarded
Beaumont who spoke for the Board, only on the ground that they are police
observed that personnel. In the case of Govindaraju
"a confession of a co-accused is alias Govinda Vs. State (By
obviously evidence of a very weak type. It Sriramapuram Police Station and another)
does not indeed come within the reported in (2012) 4 SCC 722 Hon'ble the
definition of "evidence" contained in S. 3 Apex Court in paragraph nos. 30 and 31
of the Evidence Act. It is not required to has held as under:-
be give on oath, nor in the presence of the
accused, and it cannot be tested by cross- "30. It cannot be stated as a rule that
examination. It is a much weaker type of a police officer can or cannot be a sole
evidence than the evidence of an eye-witness in a criminal case. It will
approver, which is not subject to any of always depend upon the facts of a given
those infirmities. S. 30, however, provides case. If the testimony of such a witness is
that the Court may take the confession reliable, trustworthy, cogent and duly
into consideration and thereby, no doubt, corroborated by other witnesses or
makes it evidence on which the court may admissible evidences, then the statement
act; but the section does not say that the of such witness cannot be discarded only
confession is to amount to proof. Chearly on the ground that he is a police officer
there must be other evidence. The and may have some interest in success of
confession is only one element in the the case. It is only when his interest in the
consideration of all the facts proved in the success of the case is motivated by
case; it can be put into the scale and overzealousness to an extent of his
weighed with the other evidence." involving innocent people; in that event,
no credibility can be attached to the
24. Regarding appellants Phool statement of such witness.
Chandra and Kallan, learned counsel for 31. This Court in the case of Girja
the appellants has submitted that all the Prasad (2007) 15 SCC 760 while
public witnesses, who were made witness particularly referring to the evidence of a
of the recovery by the police, have not police officer, said that it is not the law
supported the case of the prosecution. that Police witnesses should not be relied
Thus the sole evidence to prove these upon and their evidence cannot be
circumstances, remains the evidence of accepted unless it is corroborated in
only police personnel and the sole material particulars by other independent
evidence of police personnel cannot be evidence. The presumption applies as
acted upon by the court. So the first point much in favor of a police officer as any
to be considered is whether the evidence other person. There is also no rule of law
of police personnel can be acted upon. which lays down that no conviction can
(L ii) Whether evidence of police be recorded on the testimony of a police
personnel can be acted upon: officer even if such evidence is otherwise
reliable and trustworthy. The rule of
25. Before proceeding further in the prudence may require more careful
matter, we would like to address scrutiny of their evidence. If such a
ourselves on the point as to whether the presumption is raised against the police
evidence of police personnel can be acted officers without exception, it will be an
3 All] Santosh alias Neta Khatik Vs. State of U.P. 1175

attitude which could neither do credit to Yakub Abdul Razak Memon Vs. State of
the magistracy nor good to the public, it Maharashtra reported in (2013) 13
can only bring down the prestige of the Supreme Court Cases 1.
police administration."
28. It is true that in the instant case,
26. In the case of Rohtash Kumar the public witness regarding recovery and
Vs. State of Haryana reported in (2013) arrest of appellant Phool Chandra and
14 Supreme Court Cases 434, Hon'ble the arrest of appellant Kallan, recovery of
Apex Court in paragraph no. 35 has held dead bodies on the pointing out of
as under:- appellant Phool Chandra have turned
hostile, inspite of the fact that their
"35. The term witness, means a signatures were present on the recovery
person who is capable of providing memos but they have stated that their
information by way of deposing as signatures were obtained subsequently.
regards relevant facts, via an oral Keeping in view the facts of the instant
statement, or a statement in writing, made case, where the accused persons are
or given in Court, or otherwise. In alleged to have murdered seven persons
Pradeep Narayan Madgaonkar and Ors. v. simply for animals, then how a person of
State of Maharashtra (1995) 4 SCC 255, rural background with virtually having no
this Court examined the issue of the protection against such criminals can dare
requirement of the examination of an to depose against them. In our considered
independent witness, and whether the opinion, this was the main reason as to
evidence of a police witness requires why these witnesses have not supported
corroboration. The Court herein held, that the case of the prosecution.
the same must be subject to strict scrutiny.
However, the evidence of police officials (L iii) Whether evidence of hostile
cannot be discarded merely on the ground witness stands wiped out from record:
that they belonged to the police force, and
are either interested in the investigating or 29. Law is settled on the point that
the prosecuting agency. However, as far even if the witnesses have been declared
as possible the corroboration of their hostile, even then their evidence does not
evidence on material particulars, should stand wiped out from the record and the
be sought. (See also: Paras Ram v. State court would be lawful in seeking
of Haryana (1992) 4 SCC 662; Balbir corroboration from the said evidence on
Singh v. State (1996) 11 SCC 139; any point where the evidence of such
Kalpnath Rai v. State (Through CBI) witness supports the case of the
(1997) 8 SCC 732; M. Prabhulal v. prosecution. Reference may be made on
Assistant Director, Directorate of this point to the pronouncement of
Revenue Intelligence (2003) 8 SCC 449; Hon'ble the Apex Court in the case of
and Ravinderan v. Superintendent of Rohtash Kumar (supra) wherein Hon'ble
Customs (2007) 6 SCC 410)." the Apex Court has observed that the
(underlined by us) evidence of a hostile witness cannot be
rejected in toto merely because the
27. Similar view was expressed by prosecution choose to treat him as hostile
Hon'ble the Apex Court in the case of and cross examined him. This point has
1176 INDIAN LAW REPORTS ALLAHABAD SERIES

been considered in the aforementioned Bengal reported in (2012) 7 Supreme

case in paragraph nos. 25, 26 and 27, Court Cases 646.
which reads as as under:
31. In view of the aforementioned
"25. It is a settled legal proposition legal proposition, we first consider the case
that evidence of a prosecution witness of five appellants, namely, Santosh alias Neta
cannot be rejected in toto, merely because Khatik, Pappu alias Fakku, Nankai, Ramesh
the prosecution chose to treat him as and Rakesh, from whose possession or on
hostile and cross examined him. The whom pointing out nothing incriminating is
evidence of such witnesses cannot be alleged to have been recovered. Learned trial
treated as effaced, or washed off the court in its judgment has observed that all the
record altogether. The same can be appellants have very strong criminal history
accepted to the extent that their version is against them including the offences of
found to be dependable, upon a careful murder. Perusal of the record also shows that
scrutiny thereof. appellant Ramesh and Pappu alias Fakku
26. In State of U.P. v. Ramesh were arrested during investigation and made
Prasad Misra and Anr. (1996) 10 SCC confessions in police custody but admittedly
360, this Court held, that evidence of a nothing incriminating is alleged to have been
hostile witness would not be rejected in recovered from their possession or on their
entirety, if the same has been given in pointing out. Thus, their confessions, in
favour of either the prosecution, or the police custody, are hit by the provisions of
accused, but is required to be subjected to Sections 25 and 26 of the Indian Evidence
careful scrutiny, and thereafter, that Act. The only evidence that remains against
portion of the evidence which is the above-named five appellants is the
consistent with the either case of the confession of co-accused.
prosecution, or that of the defence, may
be relied upon. (See also: C. Muniappan (L iv) Evidentiary value of
and Ors. v. State of Tamil Nadu (2010) 9 confession of co-accused:
SCC 567; Himanshu @ Chintu v. State
(NCT of Delhi) (2011) 2 SCC 36; and 32. The Constitution Bench of Hon'ble
Ramesh Harijan v. State of U.P. (2012) 5 the Apex Court in the case of Haricharan
SCC 777). Kurmi (Supra) has held that the confession of
27. Therefore, the law permits the co-accused is a weak type of evidence. The
court to take into consideration the view expressed by Hon'ble the Apex Court
deposition of a hostile witness, to the in the aforementioned case of Haricharan
extent that the same is in consonance with Kurmi has been followed by Hon'ble Apex
the case of the prosecution, and is found Court in its subsequent judgment in the case
to be reliable in careful judicial scrutiny." of Prakash Kumar Vs. State of Gujarat
reported in (2007) 4 SCC 266. Hon'ble the
30. Similar view was expressed by Apex Court in paragraph no. 7 has held as
Hon'ble the Apex Court in the case of under:
Paulmeli and another Vs. State of Tamil
Nadu through Inspector of Police reported "7. The prosecution could not adduce
in (2014) 13 SCC 90 and also in the case any other supporting evidence to prove
of Shyamal Ghosh Vs. State of West the guilt of the appellant. Even based on
3 All] Santosh alias Neta Khatik Vs. State of U.P. 1177

the confession of the co-accused, the only Supreme Court Cases 165, Hon'ble the
allegation against the appellant is that he Apex Court has placed reliance upon the
was in the company of the other co- pronouncement in the case of Haricharan
accused and had pointed out towards the Kurmi and has observed in paragraph no.
victim by making a sign whereupon the 27 and 28 as under:-
other accused over-powered the victim
and took him forcibly in the Maruti van. "27. This Court in Haricharan case
To prove that the appellant was in the AIR 1964 SC 1184 further observed that
company of other accused, there is no Section 30 merely enables the court to
other independent evidence. Even though take the confession into account. It is, not
the prosecution adduced other evidence to obligatory on the court to take the
prove that the victim Babulal Misrimal confession into account. this Court
Jain was forcibly taken and kept in reiterated that a confession cannot be
unlawful custody, the complicity of the treated as substantive evidence against a
appellant could not be proved. The co-accused. Where the prosecution relies
prosecution has failed to prove the case upon the confession of one accused
against the appellant." against another, the proper approach is to
consider the other evidence against such
33. In another case in the case of an accused and if the said evidence
Mohtesham Mohd. Ismail Vs. SPL. appears to be satisfactory and the court is
Director, Enforcement Directorate and inclined to hold that the said evidence
another reported in (2007) 8 Supreme may sustain the charge framed against the
Court Cases 254 Hon'ble the Apex Court said accused, the court turns to the
has held in paragraph no. 19 as under:- confession with a view to assuring itself
that the conclusion which it is inclined to
"19. Apart therefrom the High Court draw from the other evidence is right.
was bound to take into consideration the 28. This Court in Haricharan case
factum of retraction of the confession by AIR 1964 SC 1184 clarified that though
the appellant. It is now a well- settled confession may be regarded as evidence
principle of law that a confession of a co- in generic sense because of the provisions
accused person cannot be treated as of Section 30 of the Evidence Act, the
substantive evidence and can be pressed fact remains that it is not evidence as
into service only when the court is defined in Section 3 of the Evidence Act.
inclined to accept other evidence and feels Therefore, in dealing with a case against
the necessity of seeking for an assurance an accused, the court cannot start with the
in support of the conclusion deducible confession of a co-accused; it must begin
therefrom. [See Haricharan Kurmi etc. v. with other evidence adduced by the
State of Bihar AIR 1964 SC 1184; prosecution and after it has formed its
Haroom Haji Abdulla v. State of opinion with regard to the quality and
Maharashtra AIR 1968 SC 832; and effect of the said evidence, then it is
Prakash Kumar alias Prakash Bhutto etc. permissible to turn to the confession in
v. State of Gujarat (2007) 4 SCC 266]." order to receive assurance to the
conclusion of guilt which the judicial
34. In the case of Pancho Vs. State mind is about to reach on the said other
of Haryana reported in (2011) 10 evidence."
1178 INDIAN LAW REPORTS ALLAHABAD SERIES

35. Perusal of the aforementioned law. Even the reliable witnesses for the
case laws makes it abundantly clear that prosecution turn hostile due to
the confession of co-accused cannot be intimidation, fear and host of other
made basis for conviction. The reason reasons. ............................"
behind is that the said confession was
recorded by the police officer while the 37. Law is settled on the point that
maker was in police custody. The second no person can be convicted unless and
reason is that the accused has no until the prosecution succeeds in proving
opportunity to test the same through its case beyond reasonable doubt against
cross-examination nor evidence of such the accsued persons. Since the only
maker of the confession is recorded in his evidence available against the above-
presence. Thus so far as the five named five accused was either their own
appellants (from whom or on whose confession or confession of co-accused,
pointing out no recovery has been made) therefore, keeping in view the legal
are concerned, the trial court was swayed pronouncement of Hon'ble the Apex
away by the seriousness of the offence Court, mentioned above, the conviction of
and also by the fact that the appellants these five appellants, rendered by the trial
have a very strong criminal background. court become unsustainable under law.
But this, by itself, cannot be a ground to Accordingly Criminal Appeal No. 552 of
hold a person guilty. If the independent 2009 preferred by Santosh alias Neta
witnesses would have cooperated the Khatik Criminal Appeal No. 550 of 2009
prosecution and would have supported the preferred by appellant Pappu alias Fakku,
case of the prosecution then the position Criminal Appeal No. 551 of 2009
would have been different. The apathy of preferred by appellant Nankai, Criminal
the public in cooperating the prosecution Appeal No. 327 of 2009 preferred by
is a great hurdle in the effective appellant Ramesh and Criminal Appeal
administration of criminal justice and No. 4596 of 2013 preferred by appellant
because of this apathy of the public, the Rakesh deserve to be allowed.
courts are left with no option but to acquit
the hardened criminals accused of heinous 38. So far as the second set of
offences. accused appellants, namely, Kallan and
Phool Chandra is concerned, the property
36. In the case of Dharam Deo of the seven deceased persons was
Yadav Vs. State of Uttar Pradesh reported recovered from the possession of
in (2014) 5 Supreme Court Cases 509, appellant Kallan and on the basis of the
Hon'ble the Apex Court in paragraph no. information furnished by appellant Kallan
30 has expressed its views on this aspect involvement of appellant Phool Chandra
as under:- came into light and he was arrested. On
his pointing out, seven dead bodies were
"30. Criminal Judicial System in this recovered.
country is at crossroads, many a times,
reliable, trustworthy, credible witnesses to 39. In the instant case, the police has
the crime seldom come forward to depose taken a very quick action. The F.I.R. was
before the court and even the hardened lodged at 1:00 p.m. Immediately
criminals get away from the clutches of thereafter, a message was flashed through
3 All] Santosh alias Neta Khatik Vs. State of U.P. 1179

R.T. Set and only after about ten hours of then the original owner of the said sheeps
the registration of the F.I.R., appellant must have come forward to claim the
Kallan was arrested along with 700 custody of these recovered sheeps and
sheeps and some other animals. Here it is animals but neither it has been so pleaded
pertinent to mention that appellant Kallan by the defence nor there is any evidence
has nowhere claimed the ownership of the that the recovered animals were the
recovered animals. The defence of property of someone else. Thus on this
appellant Kallan was that the said point, the evidence of PW-11 S.O.
recovery has been falsely planted against Madhusudan Singh is found to be wholly
him. Submission of learned counsel for reliable. The only submission of learned
the appellants was that PW-2 Bal Kishan counsel for appellant Kallan, to discard
and PW-9 Ram Raj have not supported the evidence of this witness, was that he is
the factum of recovery. a police officer but we have already
discussed the legal proposition on this
40. As stated earlier, these point wherein it has been observed that
witnesses, namely, Bal Kishan and the evidence of police officer cannot be
Ramraj, have not supported the case of discarded solely on the ground that he
the prosecution but the evidence of hostile belongs to the police force but his
witness, so far as it corroborates the case evidence has to be considered as the
of the prosecution, can be taken into evidence of any other witness. So after
consideration. Perusal of PW-12 Nand going through the evidence of PW-11
Kishore shows that on 13.6.2001, the S.O. Madhusudan Singh, we are satisfied
custody of the said recovered sheeps and that the said evidence, regarding recovery
other animals was transferred from PW-2 of sheeps and animals from the possession
Bal Kishan to this witness. This witness of appellant Kallan is wholly reliable.
has not only supported this fact but has
also produced the recovered animals 41. Now there remains the case
before the court during trial. This witness against appellant Phool Chandra.
has also stated that prior to him the According to the evidence of the
recovered sheeps and animals were in the prosecution, appellant Kallan informed
custody of Bal Kishan. Thus the statement the police regarding involvement of Phool
of this witness gives corroboration to the Chandra and thereafter on the basis of
evidence of PW-11 S.O. Madhusudan secret information, appellant Phool
Singh that the sheeps were recovered Chandra was arrested. He, in his
from the possession of appellants Kallan confession, has submitted that three of the
and were given in the custody of Bal deceased persons were given blows with
Kishan on the date of recovery. This axe and remaining were thrown into the
recovery was made very promptly after well alive. It has nowhere the case of
the incident and it is a huge recovery. It appellant Phool Chandra that he had seen
cannot be believed, by any stretch of any other person throwing the dead bodies
imagination, that the police personnel in the well or he came to know this fact
instead of investigating this case made by some other means. But he has only
efforts to collect such large number of made a bald denial that he has been
sheeps and animals to show a false falsely implicated and no such recoveries
recovery. Apart from it, had it been so were made on his pointing out. On this
1180 INDIAN LAW REPORTS ALLAHABAD SERIES

point again there is evidence of PW-11 because accused is the only person who
S.O. Madhusudan Singh, which has been can offer the explanation as to how else
challenged on the ground that he is a he came to know of such concealment and
police officer. But as discussed earlier, if he chooses to refrain from telling the
this by itself is no ground to discard his court as to how else he came to know of
testimony. Apart from it, the evidence of it, the presumption is a well justified
PW-5 Sheetala Prasad also supports the course to be adopted by the criminal court
fact of recovery of the dead bodies from that the concealment was made by
the well. However, he has not stated that himself. Such an interpretation is not
appellant Phool Chandra was present at inconsistent with the principle embodied
the said time. But he has supported the in Section 27 of the Evidence Act."
fact recovery of the dead bodies from the (emphasis added by us)
well as stated by PW-11 S.O.
Madhusudan Singh. He was the person 43. In the case of Pawan Kumar
who went inside the well and helped the alias Monu Mittal Vs. State of Uttar
police party in taking out the dead bodies. Pradesh reported in (2015) 7 Supreme
(L v) Law regarding recovery made Court Cases 148, Hon'ble the Apex Court
under Section 27 of the Indian Evidence in paragraph no. 29 has held as under:-
Act:
"29. It is settled principle of law that
42. Before proceeding further, we statements made by an accused before
would like to discuss the law regarding police official which amount to
the recovery made under Section 27 of the confession is barred Under Section 25 of
Indian Evidence Act. In the case of State the Indian Evidence Act. This prohibition
of Maharashtra Vs. Suresh reported in is, however, lifted to some extent by
(2000) 1 Supreme Court Cases 471, Section 27 which reads thus:
Hon'ble the Apex Court in paragraph no. 27. How much of information
26 has held as under:- received from accused may be proved.--
Provided that, when any fact is deposed to
"26. We too countenance three as discovered in consequence of
possibilities when an accused points out information received from a person
the place where a dead body or an accused of any offence, in the custody of
incriminating material was concealed a police officer, so much of such
without stating that it was conceded by information, whether it amounts to a
himself. One is that he himself would confession or not, as relates distinctly to
have concealed it. Second is that he would the fact thereby discovered, may be
have seen somebody else concealing it. proved."
And the third is that he would have been In the light of Section 27of the
told by another person that it was Evidence Act, whatever information
concealed there. But if the accused given by the accused in consequence of
declines to tell the criminal court that his which a fact is discovered only would be
knowledge about the concealment was on admissible in the evidence, whether such
account of one of the last two possibilities information amounts to confession or not.
the criminal court can presume that it was The basic idea embedded Under Section
concealed by the accused himself. This is 27 of the Evidence Act is the doctrine of
3 All] Santosh alias Neta Khatik Vs. State of U.P. 1181

confirmation by subsequent events. The postmortem reports of these four persons.

doctrine is founded on the principle that if Apart from it, other prosecution witness
any fact is discovered in a search made on PW-17 S.I. R.K. Mishra, who had
the strength of any information obtained conducted the inquest proceedings of
from a prisoner, such a discovery is a seven deceased persons also proves the
guarantee that the information supplied by fact of recovery of dead bodies from the
the prisoner is true. The information said well. The evidence of subsequent
might be confessional or non-inculpatory Investigating Officer PW-13 S.I. Ranveer
in nature, but if it results in discovery of a Singh also shows that some of the
fact it becomes a reliable information (see accused persons were arrested by him and
State of Maharashtra v. Damu (2000) 6 they have confessed their guilt. But as
SCC 269) stated earlier, nothing incriminating is
(underlined by us) alleged to have been recovered from their
possession. It is nowhere the defence of
44. Keeping in view the appellant Phool Chandra that he had seen
aforementioned proposition of law, in our someone else throwing the dead bodies in
considered opinion, it was not only the the well or this fact came into his
recovery of the seven dead bodies, which knowledge by any other means. So the
becomes admissible under the Act. But case of Suresh (Supra) shall apply in full
appellant Phool Chandra had also force in the fact of the instant case and the
furnished information that three of the court can rightly presume that Phool
deceased persons were given blows with Chandra was the person, who had thrown
axe. Submission of learned counsel for the dead bodies into the well.
the appellants was that lacerated wound (M) Defence of appellant Phool
was found on the head of deceased. But Chandra:
edge of the axe, used in the offence may
not be sharp enough to cause incised 45. As per evidence of D.W.-1 Head
wound or it might have been used by its Moharir Shiv Shankar Singh, one F.I.R.
blunt side. But perusal of the injuries under Section 147, 148, 149, 364, 323,
clearly shows that said injuries were 342, 302 and 201 I.P.C. was lodged by
caused by a heavy weapon and this fact Nankai son of Bindeshwari on 29.9.1996
was also discovered in the postmortem. In at 10:00 p.m. making allegation of an
our view, this fact was also discovered on incident that took place on 24.9.1996.
the basis of the information furnished by Circle Officer had investigated the case
the appellant. Apart from it, appellant and final report was filed after
Phool Chandra had also informed that investigation which was accepted by the
four of the deceased persons were thrown court. Appellant Phool Chandra happens
alive in the well. Perusal of the to be brother of Nankai. Appellant ought
postmortem reports of these four persons to have filed F.I.R. of the said case which
shows that no mark of injury was found was lodged by Nankai against the then
on their bodies and cause of death was S.O. of Police Station Hussainganj and
asphyxia as a result of ante mortem large number of other police personnel. It
drowning and this fact, informed by has nowhere been pleaded by appellant
appellant Phool Chandra was also Phool Chandra that any effort was made
discovered and stands verified by the from his side to file any protest petition
1182 INDIAN LAW REPORTS ALLAHABAD SERIES

against the said final report. Apart from it, them, and both of them are responsible for
this incident had taken place after about the death of seven persons. Though the
five years of the registration of the said other appellants have not been found
F.I.R. So such a long gap, that too, after guilty but it does not mean that other
acceptance of the final report by the court persons were not involved in this offence.
must have made this ground too stale to The prosecution story regarding
be a reason for false implication of involvement of several other persons in
appellant Phool Chandra. It has whereby this incident has not been disbelieved.
been pleaded that any of the police Such an offence could not have been
personnel, who was made accused in that committed unless and until several person
case was, in any manner, associated with worked together in prosecution of their
the incident of this case. Hence the common object. The other appellants have
defence taken by appellant Phool Chandra been acquitted only on the ground as there
was not the least probable. was no admissible and reliable evidence
against them. So their acquittal would not
46. Thus in view of the discussion lend any help to these two appellants
made above, we are of the considered against whom the case of the prosecution
view that recoveries of the seven dead stands proved. Therefore, appellants have
bodieswere made on the basis of the rightly been convicted for the offence
information furnished by appellant Phool with the aid of Section 149 I.P.C. Thus
Chandra. we hold that Criminal Appeal No. 611 of
2009 preferred by appellant Kallan and
47. Now cumulative effect of these Criminal Appeal No. 282 of 2009
two recoveries has to be considered. preferred by appellant Phool Chandra
Appellant Phool Chandra had also sans merits, deserve to be dismissed.
informed the Investigating Officer that he Order
had sent animals with Kallan and two
other persons to Nauwagaon. Though it is 48. Criminal Appeal No. 552 of
true that before the said statement, 2009 preferred by Santosh alias Neta
recovery from the possession of Khatik Criminal Appeal No. 550 of 2009
appellants Kallan have been made. Apart preferred by appellant Pappu alias Fakku,
from it, appellant Kallan disclosed the Criminal Appeal No. 551 of 2009
fact that appellant Phool Chandra had preferred by appellant Nankai, Criminal
taken seven abducted persons to dispose Appeal No. 327 of 2009 preferred by
of them and subsequently on the basis of appellant Ramesh and Criminal Appeal
the information furnished by Phool No. 4596 of 2013 preferred by appellant
Chandra, seven dead bodies were Rakesh are hereby allowed. The aforesaid
recovered from the well. Though there is five appellants are hereby acquitted of the
no direct evidence that all these persons charges levelled against them. They be set
assembled in the house of appellant Phool at liberty. At present, they are in custody.
Chandra. But taking above two They shall be released forthwith, if not
circumstances together, the conclusion is wanted in any other case.
irresistible that they acted, in prosecution
of their common object to take away the 49. Criminal Appeal No. 611 of
animals of seven persons after killing 2009 preferred by appellant Kallan and
3 All] Smt. Vijaya Jain Vs. State of U.P. & Ors. 1183

Criminal Appeal No. 282 of 2009 violation of the rudimentary

preferred by appellant Phool Chandra are requirements of a fair hearing, her case
clearly fell in the first of the well
hereby dismissed. Both these appellants
recognized exceptions to a party being
are in custody. They shall serve out their relegated to the alternative remedy.
sentence awarded by the trial court.
(B)U.P. Stamp (Valuation of property)
50. Office is directed to communicate Rules 1997-Rule 4 and 7-circle rate fixed
this order to the court concerned forthwith to by D.M.-mere a guide line for valuation-
but its potentiality should seen on date
ensure compliance and also to send back the of execution of sole deed- and not future
lower court record. use-order impugned quashed remained
-------- for fresh decision.
APPELLATE JURISDICTION
CIVIL SIDE Held: Para-26
DATED: ALLAHABAD 01.09.2015 The market value of the property is to be
determined with reference to its
BEFORE character on the date of execution of the
THE HON'BLE DR. DHANANJAYA instrument and its potentiality as on that
YESHWANT CHANDRACHUD, C.J. date.
THE HON'BLE YASHWANT VARMA, J.
(Delivered by Hon'ble Yashwant Varma, J.)
Special Appeal Defective No. 598 of 2015
1. The original petitioner is in appeal
Smt. Vijaya Jain ...Appellant before us consequent to the order of the
Versus
State of U.P. & Ors. ...Respondents
learned Single Judge dismissing her writ
petition on 17 August 2015 holding that the
Counsel for the Appellant: petitioner had an equally efficacious
Sri Aishwarya Pratap Singh statutory remedy of filing an appeal under
Section 56 of the Indian Stamp Act 18991.
Counsel for the Respondents:
C.S.C. 2. The writ petition laid challenge to
an order dated 10 November 2014 passed
(A)Constitution of India. Art.-226-Writ by the Collector and District Magistrate,
Jurisdiction-dismissal on ground of Gautambudh Nagar holding that the gift
alternative remedy-additional demand of
deed executed in favor of the appellant on
stamp duty-without any material satisfaction
about deficit amount-order passed ex-parte 17 December 2012 was liable to be
even recall application rejected-Learned subjected to a levy of Rs.8,89,000/- as
Single Judge dismissed petition on ground deficit stamp duty together with penalty of
against order impugned-provisions of four times the deficit stamp duty amounting
statutory appeal or revision available-held- to Rs.35,56,000/-. Thus a total amount of
order passed ex parte without affording
Rs.44,45,000/- was sought to be recovered
opportunity of hearing-can not be relegated
to avail alternative remedy. from the appellant. Apart from the above,
the deficit amount of stamp duty was also
Held: Para-14 subjected to a levy of interest at the rate of
In our opinion, therefore, since the 1.5 % per month on simple interest basis
proceedings had been taken ex parte from the date of execution of the instrument
against the appellant and in complete
till the date of actual recovery of the sums
1184 INDIAN LAW REPORTS ALLAHABAD SERIES

aforementioned. Since the order of 10 virtue of insertion of sub-section (1-A) in

November 2014 was stated to have been the said provision in terms of U.P. Act
made ex parte, the appellant sought recall of No. 38 of 2001. The amendment came
the same by moving an application before into force with effect from 20 May 2002.
the second respondent. This application The proviso to sub-section (1-A) of
came to be rejected on 03 August 2015 and Section 56 of the Act proceeds to impose
the original order of 10 November 2014 a condition to the effect that no
was maintained. It was aggrieved by the application for stay or recovery of any
aforesaid two orders that the appellant filed disputed amount of stamp duty including
a writ petition before this Court. interest thereon or penalty shall be
entertained unless the applicant has
3. Before we proceed further, we furnished satisfactory proof of the
would like to highlight here that the order payment of not less than one-third of the
of the second respondent refers to the disputed amount. This condition,
instrument in question as a sale deed. however, does not stand engrafted in sub-
However, a copy of the instrument, which section (1) of Section 56 of the Act,
has been produced before us and which which confers revisional power in the
fact was also borne out from the Chief Controlling Revenue Authority.
representation submitted by the appellant
before the second respondent shows that it 5. The distinction in the
is in fact a gift deed dated 17 December requirements of the two provisions noted
2012 executed by the husband of the above fell for consideration before a Full
appellant in her favour in respect of a plot Bench of this Court in Gaurav Aseem
described as Khasra No. 786 area 0.7160 Avej Vs. Chief Controlling Revenue
hectare situate in village Surajpur, Authority U.P. Allahabad and others2 .
Pargana Dadri. The Collector proceeded The Full Bench answered the questions
to pass the impugned orders holding that framed for its consideration in the
the instrument had come to be taxed at following terms: -
rates applicable to agricultural land
whereas in his opinion it was liable to be "Conclusion:
taxed treating the property comprised in (1) In view of the foregoing
the instrument as residential. He discussions, we are of the considered
accordingly proceeded to apply the circle opinion that sub-section (1) of section 56
rate applicable to residential plots and of the Indian Stamp Act, 1899 does not
held the Appellant liable to pay the stand deleted by insertion of sub-section
amounts aforementioned. (1-A) in section 56 of the Act by the U.P.
Act No. 38 of 2001 and both the
4. The learned Single Judge has provisions of revision and appeal are
proceeded to dismiss the writ petition as available to an aggrieved person.
noted above by holding that the appellant
has an equally efficacious statutory (2) If a revision is preferred under
remedy of filing an appeal under Section sub-section (1) of section 56 of the Act
56 of the Act. It is apposite to note here then there is no requirement of deposit of
that the remedy of an appeal stands 1/3rd of the disputed amount of deficient
incorporated in Section 56 of the Act by stamp duty including interest or penalty,
3 All] Smt. Vijaya Jain Vs. State of U.P. & Ors. 1185

if any while filing an application for grant Devi3 while considering the validity of a
of interim relief. provision requiring a pre-deposit for
(3) The proviso of sub-section (1-A) consideration of a revision petition
of section 56 of the Act will apply only in against the order of the Collector, the
cases where an appeal is preferred under Supreme Court observed as follows: -
sub-section (1-A) and its scope is
restricted to appeal only. "29. In our opinion in this situation it
(4) Sub-section (1-A) of section 56 is always open to a party to file a writ
of the Act as inserted by the U.P. Act No. petition challenging the exorbitant
38 of 2001 is constitutionally valid." demand made by the registering officer
under the proviso to Section 47-A
6. We have, however, heard the alleging that the determination made is
learned counsel for the parties even on the arbitrary and/or based on extraneous
assumption that the remedy of a revision was considerations, and in that case it is
available to the appellant against the orders always open to the High Court, if it is
passed by the second respondent and satisfied that the allegation is correct, to
whether in the facts and circumstances of the set aside such exorbitant demand under
case, the appellant was liable to be relegated the proviso to Section 47-A of the Stamp
to the alternative remedy provided for under Act by declaring the demand arbitrary. It
Section 56 of the Act. is well settled that arbitrariness violates
Articles 14 of the Constitution vide
7. The existence of an alternative Maneka Gandhi vs. Union of India
statutory remedy as has been consistently [(1978) 1 SCC 248]. Hence, the party is
held by the Courts is not a rule of not remediless in this situation."
inflexible character nor is it an inviolable
condition. The Courts vested with the 9. A similar issue fell for
power and jurisdiction under Article 226 consideration before the Supreme Court
of the Constitution of India have always in Har Devi Asnani Vs. State of
viewed this rule as a self imposed Rajasthan4. Considering the judgment of
restriction rather than a rule which is to be the High Court relegating the appellants
blindly adhered to and which brooks of no before it to the alternative remedy of
exception. Some of the well settled preferring a revision under the provisions
exceptions to the rule of a petitioner being of the Stamp Act as applicable in
relegated to an alternative remedy are Rajasthan, the Supreme Court held as
where the principles of natural justice follows: -
have been violated or where orders are
made without jurisdiction. Without "12. We are, however, inclined to
burdening this judgment with precedent, interfere with the order dated 21.10.2009
we may refer to only two causes which of the learned Single Judge of the High
travelled to the Supreme Court from Court in SB Civil Writ Petition No.1244
proceedings arising out of the Stamp Acts of 2009 as well as the order dated
of the respective States. 22.03.2010 of the Division Bench of the
High Court in D.B. Civil Appeal (Writ)
8. In Government of Andhra No.1261 of 2009. The learned Single
Pradesh and others Vs. Smt. P. Laxmi Judge of the High Court and the Division
1186 INDIAN LAW REPORTS ALLAHABAD SERIES

Bench of the High Court have taken a justice have been violated or that the
view that as the appellant has a right of order has been rendered without
revision under Section 65 (1) of the Act, jurisdiction or if it is disclosed to the
the writ petition of the appellant Court that grave injustice has been caused
challenging the determination of the value to the petitioner and it is found that his
of the land at Rs.2,58,44,260/- and the relegation to the alternative remedy would
demand of additional stamp duty and perpetuate injustice and cause prejudice, it
registration charges and penalty totaling is always open to this Court to exercise its
to Rs.15,70,000/- could not be entertained prerogative constitutional powers and to
under Article 226 of the Constitution. The issue an appropriate writ striking at the
learned Single Judge of the High Court offending action. This principle stands
and the Division Bench of the High Court extended in light of the abovementioned
have not considered whether the precedents to a case where the petitioner
determination of market value and the is foisted with an exorbitant and arbitrary
demand of deficit stamp duty were demand in which case his relegation to
exorbitant so as to make the remedy by the alternative remedy would not be
way of revision requiring deposit of 50% justified.
of the demand before the revision is
entertained ineffective. In Government of 11. The first issue that therefore falls
Andhra Pradesh and others Vs. Smt. P. for consideration is whether the case of
Laxmi Devi (supra) this Court, while the appellant fell within the exceptions
upholding the proviso to sub-section (1) referred to above and whether the facts of
of Section 47-A of the Indian Stamp Act the present case justified the appellant
introduced by Andhra Pradesh being relegated to the alternative remedy.
Amendment Act 8 of 1998, observed:
... ... .... 12. Pursuant to the initial notice that
13. In our view, therefore, the was issued to the appellant on 9
learned Single Judge should have September 2013, she filed a detailed reply
examined the facts of the present case to for consideration of the second
find out whether the determination of the respondent on 3 October 2013. By her
value of the property purchased by the communication dated 7 July 2014, the
appellant and the demand of additional appellant wrote to the District Magistrate
stamp duty made by the appellant by the that she had not heard back from his
Additional Collector were exorbitant so as office subsequent to the reply being
to call for interference under Article 226 submitted and therefore presuming that
of the Constitution." the notice itself had been withdrawn, she
requested the second respondent to send a
10. The law as authoritatively laid letter or copy of the order which may
down by the Supreme Court in the have been passed confirming the above.
aforementioned two judgments clearly The appellant does not appear to have
establishes that a petitioner before the received any reply from the office of the
High Court is not liable to be relegated to second respondent nor was she made
the alternative remedy as a matter of rule. aware of the continuance of the
If in the facts of a particular case it is proceedings. On 9 January 2015, she
established that the principles of natural again wrote to the second respondent,
3 All] Smt. Vijaya Jain Vs. State of U.P. & Ors. 1187

drawing his attention to the fact that her addressed by the appellant to the second
attempts to meet him had proved respondent clearly establish that she was
unsuccessful and that the staff of the not served with any notice nor made
collectorate was most uncooperative. She aware of the proceedings which were at
accordingly requested to be granted an that stage pending before the second
appointment and a specific date of hearing respondent. Her application for recall of
to be fixed so that the controversy could the original order was not dismissed on
be brought to a close. the ground that the rules of natural justice
had been complied with or that she had
13. It is apparent from the above willfully refused to cooperate in the
narration of facts that the order of 10 disposal of the proceedings. The
November 2014 had not been brought to application dated 4 June 2015 for recall of
the notice of the appellant. The writ the order dated 10 November 2014 came
petition then recites that it was only on 31 to be rejected based upon the report of the
May 2015 when the Amin of the village Naib Tehsildar dated 17 July 2015 which
sought to serve upon her a recovery in the understanding of the second
certificate dated 29 May 2015, that she respondent fortified the conclusions
was made aware of an adverse order which stood recorded in the original order
having been passed in the proceedings in of 10 November 2014. In our opinion,
question. She accordingly applied for a therefore, since the proceedings had been
certified copy of the order passed on 10 taken ex parte against the appellant and in
November 2014 and made a complete violation of the rudimentary
representation for recall of the said order requirements of a fair hearing, her case
on 4 June 2015. The second respondent clearly fell in the first of the well
did not proceed to reject the said recognized exceptions to a party being
representation dated 4 June 2015 outright relegated to the alternative remedy.
but curiously enough issued a
communication to the Naib Tehsildar on 9 15. There is another aspect of the
June 2015 to submit a report after matter which the learned Single Judge in
undertaking a spot inspection. The Naib our opinion failed to bear in mind while
Tehsildar in turn appears to have relegating the appellant to the alternative
inspected the plot in question on 17 July remedy.
2015 and submitted a report of even date.
On 3 August 2015, the second respondent 16. As was noticed by us above, the
relying on this report of 17 July 2015, proceedings taken by the District
proceeded to reject the application dated 4 Magistrate stood initiated and in fact
June 2015 for recall and maintained the concluded against the appellant on the
order in original passed on 10 November ground that the instrument executed in her
2014. favour on 17 December 2012 had escaped
payment of stamp duty. The gift deed
14. From the above narration of itself had been duly registered upon
facts, it is evident that the proceedings payment of stamp duty of Rs.1,13,000/-
against the appellant were taken ex parte and returned to the appellant. The amount
and in violation of the principles of paid as stamp duty was found to be deficit
natural justice. The communications by the second respondent and it was on
1188 INDIAN LAW REPORTS ALLAHABAD SERIES

the above conclusion that the appellant was (1) (a) If the market value of any
held liable to pay in total a sum of property which is the subject of any
Rs.44,45,000/-. In addition to the above, the instrument, on which duty is chargeable
appellant was further called upon to pay on the market value of the property as set
interest on the deficit stamp duty @ 1.5 % forth in such instrument, is less than even
per month on simple interest basis from the the minimum value in accordance with
date of execution of the instruments till the the rules made under this Act, the
date of recovery of the amount mentioned registering officer appointed under the
above. The demand therefore was an Registration Act, 1908, (Act no. 16 of
increase of almost forty times the original 1908), notwithstanding anything
duty paid on the instrument. This in our contained in the said Act, immediately
opinion was clearly an exorbitant demand after presentation of such instrument and
which stood raised against the appellant and before accepting it for registration and
therefore fell in the category of situations taking any action under Section 52 of the
which were noticed by the Supreme Court said Act, require the person liable to pay
in P. Laxmi Devi (supra) and Har Devi stamp duty under Section 29, to pay the
Asnani (supra). For this reason also, we are deficit stamp duty as computed on the
of the opinion that the learned single Judge basis of the minimum value determined in
clearly fell in error in relegating the accordance with the said rules and return
appellant to the alternative remedy of an the instrument for presenting again in
appeal under the Act. accordance with Section 23 of the
Registration Act, 1908.
17. Having arrived at the above (b) When the deficit stamp duty
conclusion we proceeded to hear the required to be paid under clause (a) is
learned counsels for parties at some paid in respect of any instrument and the
length on the merits of the issues raised in instrument is presented again for
the writ petition. From the discussion that registration, the Registering Officer shall
follows we are clearly of the opinion that certify by endorsement thereon, that the
the orders impugned in the writ petition deficit stamp duty has been paid in
were clearly unsustainable. We proceed to respect thereof and the name and the
record our reasons hereinafter. residence of the person paying them and
register the same.
18. Before proceeding further, (c) Notwithstanding contained in any
however, it would be relevant to note the other provisions of this Act, the deficit
salient statutory provisions that would have a stamp duty may be paid under clause (a)
bearing on the issues raised before us. The in the form of impressed stamps
power of the Collector to move against an containing such declaration as may be
instrument on the ground of deficit stamp prescribed. 3
duty having been paid thereon is drawn from (d) If any person does not make the
the provisions of Section 47-A of the Act. payment of deficit stamp duty after
The relevant extracts of Section 47-A stand receiving the order referred to in clause
extracted below: - (a) and presents the instrument again for
registration, the registering officer shall,
"[47-A. Under-valuation of the before registering the instrument refer the
instrument. - same to the Collector, for determination
3 All] Smt. Vijaya Jain Vs. State of U.P. & Ors. 1189

of the market value of the property and of registering officer under sub-section
the proper duty payable thereon. (1) shall not prevent the Collector from
(2) On receipt of a reference under initiating proceedings on any instrument
sub- section (1), the Collector shall after under sub-section (3).
giving the parties a reasonable (4) If on enquiry under sub-section
opportunity of being heard and after (2) and examination under subsection (3)
holding an enquiry in such manner as may the Collector finds the market value of the
be prescribed by rules made under this property-
Act, determine the market value of the (i) truly set forth and the instrument
property which is the subject of such duly stamped, he shall certify by
instrument and the proper duty payable endorsement that it is duly stamped and
thereon. return it to the person who made the
(3) the Collector may, suo motu, or reference;
on a reference from any Court or from the (ii) not truly set forth and the
Commissioner of Stamps or an Additional instrument not duly stamped, he shall
Commissioner of Stamps or from a require the payment of proper duty or the
Deputy Commissioner of Stamps or from amount required to make up the
an Assistant Commissioner of Stamps or deficiency in the same together with a
any officer authorized by the State penalty of an amount not exceeding four
Government in that behalf, within four times the amount of the proper duty or the
years from the date of registration of any deficient portion thereof.
instrument on which duty is chargeable on * [(4-A) The Collector shall also
the market value of the property, not require along with the deficit stamp duty
already referred to him under sub- section or penalty required to be paid under
(1), call for an examine the instrument for clause (ii) of sub-section (4), the payment
the purpose of satisfying himself as to the of a simple interest at the rate of one and
correctness of the market value, of the half percent per mensem on the amount of
property which is the subject of such deficit stamp duty calculated from the
instrument and the duty payable thereon, date of the execution of the instrument till
and if, after such examination, he has the date of actual payment:
reason to believe that market value of Provided that the amount of interest
such property has not been truly set forth under the sub-section shall be recalculated
in such instrument, he may determine the if the amount of deficit stamp duty is
market value of such property and the varied on appeal or revision or by any
duty payable thereon: order of a competent Court or Authority.
Provided that, with the prior (4-B) The amount of interest payable
permission of the State Government, an under sub-section (4-A) shall be added to
action under this sub-section may be the amount due and be also deemed for all
taken after a period of four years but purposes to be part of the amount required
before a period of eight years from the to be paid.
date of registration of the instrument on (4-C) Where realisation of the deficit
which duty is chargeable on the market stamp duty remained stayed by any order
value of the property. of any Court or Authority and such order
Explanation: The payment of deficit of stay is subsequently vacated, the
stamp duty by any person under any order interest referred to in sub-section (4-A)
1190 INDIAN LAW REPORTS ALLAHABAD SERIES

shall be payable also for any period satisfy himself as to the correctness of the
during which such order of stay remained market value of the subject matter of the
in operation. instrument and for determining the duty
(4-D) Any amount paid or deposited payable thereon.
by or recovered from, or refundable to, a (3) The Collector may-
person under the provision of this Act, (a) call for any information or record
shall first be adjusted towards the deficit from any public office, officer or
stamp duty or penalty outstanding against authority under the Government or a local
him and the excess, if any, shall then be authority;
adjusted towards the interest, if any, due (b) examine and record the statement
from him.]" of any public officer or authority
under the Government or the local
19. The State Government in authority; and
exercise of its rule making power has (c) inspect the property after due
framed the Uttar Pradesh Stamp notice to parties to the instrument.
(Valuation of Property) Rules 19975. (4) After considering the
Rule 4 of the aforementioned rules, representation of the parties, if any, and
requires the Collector of the district to fix examining the records and other evidence,
the minimum value per hectare/sq. mtr of the Collector shall determine the market
agricultural and non agricultural land. The value of the subject-matter of the
minimum value which is fixed by the instrument and the duty payable thereon.
Collector in exercise of powers conferred (5) If, as a result of such inquiry, the
by rule 4 is commonly known as the circle market value is found to be fully and truly
rate. Rule 7 provides and lays down the set forth and the instrument duly stamped
procedure to be followed by the Collector according to such value, it shall be
where he chooses to exercise the power returned to the person who made the
conferred upon him by virtue of Section reference with a certificate to that effect.
47-A of the Act. Rule 7 reads as follows: A copy of such certificate shall also be
sent to the Registering Officer concerned.
"7. Procedure on receipt of a (6) If, as a result of inquiry, the
reference or when suo motu action is instrument is found to be under-valued
proposed under Section 47-A. (1) On and not duly stamped, necessary action
receipt of a reference or where action is shall be taken in respect of it according to
proposed to be taken suo motu under relevant provisions of the Act."
Section 47-A, the Collector shall issue
notice to parties to the instrument to show 20. Having extracted the relevant
cause within thirty days of the receipt of statutory provisions above, the following
such notice as to why the market value of principles emerge therefrom. Sub-section
the property set forth in the instrument (1) (a) of Section 47-A of the Act
and the duty payable thereon be not empowers the registering officer to call
determined by him. upon the person who has presented an
(2) The Collector may admit oral or instrument for registration to pay deficit
documentary evidence, if any, produced stamp duty. This power is exercisable by
by the parties to the instrument and call the registering officer immediately after
for and examine the original instrument to presentation of an instrument and before
3 All] Smt. Vijaya Jain Vs. State of U.P. & Ors. 1191

accepting it for registration and taking any encapsulated in rule 7 of the Rules. Sub-
action under Section 52 of the Act. This rule (1) thereof enjoins the Collector to
power is liable to be exercised in a issue notice to the parties to the
situation where the market value of the instrument to show cause as to why the
property as set forth in the instrument is market value of the property set forth in
less than even the minimum value fixed the instrument and the duty payable
by the Collector in accordance with the thereon be not determined by him. The
rules made under the Act. In distinction to notice to show cause comes to be issued
the above, the power under sub-section by the Collector on receipt of a reference
(3) of Section 47-A is exercised by the or where action is proposed to be taken
Collector either suo motu or on a suo motu, of course, upon being satisfied
reference from any Court or from the that the market value of the property
Commissioner of Stamps or an Additional comprised in the instrument has not been
Commissioner of Stamps, Deputy truly set forth. In terms of sub-rule (2), the
Commissioner of Stamps, an Assistant Collector is empowered to call for and
Commissioner of Stamps or any officer examine the original instrument to satisfy
authorized in that behalf by the State himself as to the correctness of the market
Government. This power confers value of the subject matter of the
jurisdiction and authority on the Collector instrument and for determining the duty
to call for and examine any instrument for payable thereon. In terms of the
the purpose of satisfying himself as to the provisions of sub-rule (3), the Collector is
correctness of the market value of the empowered to call for any information,
property which forms the subject matter examine and record the statement of any
of the instrument and if upon such public officer, or authority and inspect the
examination, he has reason to believe that property after due notice to the parties to
the market value of such property has not the instrument. Sub-rule (4) mandates that
been truly set forth in such instrument, he after examining the record and other
may proceed to determine the market evidences, the Collector shall proceed to
value of such property and the duty determine the market value of the subject
payable thereon. The first distinguishing matter of the instrument and the duty
feature of sub section (3) is that it is payable thereon. In terms of sub-rules (5)
available to be exercised even after the and (6), if as a result of such enquiry, the
instrument has been registered. Secondly market value is found to be fully and truly
the Collector proceeds under sub section set forth in the instrument and adequate
(3) upon finding that the "market value" duty paid thereon, the same is liable to be
of the property has not been truly set forth returned to the person who made the
in the instrument as distinct from the reference with a certificate to that effect.
"minimum value fixed by the Collector in If as a result of enquiry, the instrument is
accordance with the rules made under the found to be undervalued and not duly
Act" which is the benchmark for initiation stamped, further action is liable to be
of action under sub section (1). taken in accordance with the relevant
provisions of the Act.
21. The manner in which the power
under sub-section (3) of Section 47-A of 22. Admittedly the gift deed
the Act is to be exercised stands executed on 17 December 2012 was duly
1192 INDIAN LAW REPORTS ALLAHABAD SERIES

registered and returned to the appellant. property has not been truly set forth. In
The instrument thereafter appears to have the absence of a disclosure of even
been scrutinized by the Sub Registrar, rudimentary details on the basis of which
Gautambudh Nagar and the Assistant the Collector came to form this opinion,
Inspector General of Registration, the person concerned has no inkling of the
Gautambudh Nagar who submitted case that he has to meet. A notice in order
confidential memos to the second to be legally valid and be in compliance
respondent on 4 January 2013 and 20 with the principles of natural justice must
February 2013 respectively. It was on the necessarily disclose, though not in great
consideration of the above confidential detail, the case and the basis on which
memos that the notice came to be issued action is proposed to be taken against the
by the Collector, Gautam Budh Nagar on person concerned. Not only this and as is
9 September 2013. The notice called upon evident from a bare reading of rule 7, at
the appellant to show cause why deficit the stage of issuance of notice, the
stamp duty of Rs. 8,89,000 be not Collector has to proceed on the basis of
recovered from her. material which may tend to indicate that
the market value of the property has not
23. From the provisions extracted been truly and faithfully disclosed in the
above, it is apparent that the Collector instrument. The stage of computation of
proceeds under sub section (3) of Section market value comes only after the
47-A read with rule 7 when he has reason provisions of sub rules (2) (3) and (4) of
to believe that the market value of the rule 7 come into play. At the stage of
property comprised in the instrument has issuance of notices, the Collector calls
not been truly set forth and that in the upon the person concerned to show cause
opinion of the Collector, circumstances "as to why the market value of the
exist warranting him to undertake the property.... be not determined by him".
enquiry contemplated under rule 7. What
we however find from the notice dated 09 24. In the facts of the present case,
September 2013 is that the Collector has we find that the Collector had already
proceeded to record, albeit prima facie, prejudged the issue by recording that the
that the instrument in question has been appellant had paid deficit stamp duty to
insufficiently stamped to the extent of the extent of Rs.8,89,000/-. A reading of
Rs.8,89,000/-. The notice apart from the order passed on 10 November 2014
referring to a note dated 20 May 2013, then shows that the Collector proceeded
received from the Assistant Inspector to raise the demand against the appellant
General of Registration neither carries nor proceeding on the assumption that the
discloses any basis upon which the property comprised in the instrument was
Collector came to the prima facie liable to be taxed not as an agricultural
conclusion that the appellant was liable to land but as a residential plot. He
pay Rs. 8,89,000/ as deficit stamp duty. In accordingly proceeded to levy the circle
our opinion a notice of this nature must rate for a residential plot to compute the
necessarily disclose to the person market value of the property. The order of
concerned the basis and the reasons upon 10 November 2014 neither refers to nor
which the Collector has come to form an relies upon any evidence to establish that
opinion that the market value of the the property was being used for a
3 All] Smt. Vijaya Jain Vs. State of U.P. & Ors. 1193

residential purpose on the date of of execution of the instrument and its

execution of the gift deed dated 17 potentiality as on that date. We may in
December 2012. It is settled law that the this connection refer to what was
market value of the property comprised in observed by a learned Single Judge in
an instrument is liable to be computed Veer Bal Singh Vs. State of U.P. And
with reference to the date on which it was others7: -
executed.
"11. In M/s. Maya Food and
25. A Full Bench of this Court in Vanaspati Ltd. Co. V. Chief Controlling
Shri Ramesh Chandra Srivastava, Rampur Revenue Authority (Board of Revenue)
Vs.State of U.P and others6 was called Allahabad, 1990 (90) RD 57, the Court
upon to consider as to what should be the held that the market value of the land
date with reference to which the market could not be determined with reference to
value of the property forming the subject- the use of the land to which the buyer
matter of the instrument is to be intends to put in use. The Court held that
determined. Answering the above, the a buyer may intend to establish an
Full Bench explained the position of law industrial undertaking thereon and that
in the following terms:- another buyer may intend to use it for
agricultural purposes and a third person
"38. The above observation do may intend to dedicate it for charitable
support the view which we are proposing purposes and that these different
to take in the present case i.e. the relevant intentions of individual buyers may affect
date for the purpose of determining the that price of each of them would be
market value on which the stamp duty is willing to pay for the property but the
payable is the date on which the market value would not depend upon
instrument in question is executed, or in what each individual would offer for the
other words when the taxable event takes property in question and that the market
place. value would be that which a general buyer
xxx xxx xxx would offer and what the owner
66. In view of the above discussion reasonably accepts for that property, the
we answer the second question by holding Court held that in determining the market
that the relevant date for determining the value the potential of the land as on the
market value of the property for being date of sale alone could be taken into
subject-matter of the sale deed is the third account in determining the market value
i.e. January 3, 1985 when the Court and that the potential value of the land
executed the sale deed in question on that could be put in use in future could not
behalf of the vendors." to be taken into consideration.
xxx xxx xxx
26. This Court on more than one 14. The other limb of the argument is
occasion has held that the market value of that the market value of the land cannot
the land is not liable to be determined be determined with reference to use of the
with reference to the use to which a buyer land to which buyer intends to put it in
intends to put it in future. The market use, has substance. The matter in depth
value of the property is to be determined has been examined by this Court in
with reference to its character on the date Shakumbari Sugar and Allied Industries
1194 INDIAN LAW REPORTS ALLAHABAD SERIES

Ltd. v. State of U. P. And others, 2007 (5) initiation of the proceedings under
ADJ 602. In this case, reliance has been Section 47-A of the Act, but it cannot be
placed on earlier judgment in M/s. Maya relied upon to pass an order under the
Foods and Vanaspati Ltd., Allahabad v. aforesaid Section. In other words, the said
Chief Controlling Revenue Authority, report cannot form itself basis of the order
1998 (4) AWC 636 wherein the following passed under Section 47-A of the Act. In
passage has been reproduced: the case of Vijai Kumar v. Commissioner,
"Learned Chief Controlling Revenue Meerut Division, Meerut, 2008 (7) ADJ
Authority has observed that the land was 293 (para 17), the ambit and scope of
purchased for an industrial purpose and Section 47-A of the Act has been
the Collector is not arbitrary in deciding considered with some depth. Taking into
the price of the land on the basis of the consideration the Division Bench
proposed usage. This proposition is judgment of this Court in Kaka Singh v.
legally incorrect. The market value of the Additional Collector and District
land cannot be determined with reference Magistrate (Finance and Revenue), 1986
to the use of the land to which buyer ALJ 49; Kishore Chandra Agrawal v.
intends to put it. One buyer may intend to State of U. P. and others, 2008 (104) RD
establish an industrial undertaking 253 and various other cases it has been
thereon, another may intend to use it for held that under Section 47-A (3) of the
agricultural purpose and a third person Act, the burden lay upon the Collector to
may intend to dedicate it for charitable prove that the market value is more than
purposes like leaving it open as pasture minimum as prescribed by the Collector
ground or a cremation ground or a under the Rules. The report of the Sub-
playground. These different intentions Registrar and Tehsildar itself is not
may affect the price that each of them sufficient to discharge that burden"
may be willing to pay for the property and
such prices have wide variations but the 27. The above principles of law
market value is not what each such enunciated in the aforementioned
individual may offer for the property. The judgments have been consistently
market value is what a general buyer may followed by this Court. We however find
offer and what the owner may reasonably that the order of the Collector relies upon
expect. In determining the market value, no evidence which would support
the potential of the land as on the date of imposition of residential rates on a
sale alone can be taken into account and property which was stated to be
not what potential it may have in the agricultural on the date of execution of
distant future." the instrument.
xxx xxx xxx
16. None of the authorities below 28. We further find that after the
besides the report of the Sub-Registrar has appellant had filed an application for
referred any other material in support of seeking recall of the ex parte order dated
their orders. In Ram Khelawan @ Bachha 10 November 2014, the Collector issued
v. State of U. P. Through Collector, orders on 9 June 2015, calling upon the
Hamirpur and another, 2005 (98) RD 511, Naib Tehsildar to undertake an inspection.
it has been held that the report of the The inspection report is submitted on 17
Tehsildar may be a relevant factor for June 2015. It records that the plot in
3 All] Smt. Vijaya Jain Vs. State of U.P. & Ors. 1195

question falls within the embankment of exceeding..." confer on the Collector a

the Hindon river and is flood affected. It discretion to levy penalty dependent upon
further records that the plot has been the facts of each individual case. The
fenced in and that while earlier one room mere prescription of a maximum does not
existed, the same appeared to have been necessarily mean that in each case a
removed. It records that the plot is lying penalty equivalent to four times the
vacant. It further records that around and proper duty is liable to be paid. In any
in the vicinity of the plot in question, view of the matter, the imposition of
certain persons have indulged in plotting penalty has serious civil consequences
of land for the purposes of erecting and therefore must be preceded by due
residential houses. This report forms the application of mind and a consideration of
bedrock for the subsequent order passed all relevant factors including whether
by the Collector on 3 August 2015. there was an intention to evade payment
Neither this report nor the orders of duty. We find that the Collector has
impugned rely upon any evidence which failed to advert to this aspect also while
may tend to indicate that the plot when it passing the impugned orders.
was purchased or when it had been gifted
was being utilized for residential 30. On an overall conspectus of the
purposes. There is no material on record above facts we find that the impugned
to indicate that it is recorded as being for orders are rendered unsustainable being in
residential use. More fundamentally, the violation of the principles of natural
inspection report in question records facts justice, in breach of the procedure
as existing in June 2015 when in fact the prescribed under the Act and even
enquiry should have been with regard to otherwise suffering from the vice of non
the nature of the plot as obtaining on the application of mind to relevant facts and
date of execution of the instrument. We the position of law as laid down by this
are therefore of the opinion that the orders Court. The Collector in our opinion
passed by the Collector in the absence of therefore must be commanded to
any material could not have taxed the reconsider the matter afresh in light of the
instrument proceeding on the mere observations made hereinabove.
assumption that the property comprised
therein was residential. 31. It has been submitted before us
that the circle rate which has been fixed
29. The last issue which we must by the Collector under the rules is only an
take notice of is the levy of penalty. aid or a guide for the registering officer
While it is true that sub section (4) of and is not determinative of market value.
section 47-A empowers the Collector to It was therefore submitted that the same
impose penalty not exceeding four time could not form the basis for levy of stamp
the proper stamp duty, the same stands duty. Referring to the Noida Master Plan,
attracted in a case where it is found that the learned counsel for the appellant
the market value of the property was not submitted that no residential activity is
truly set forth. There must therefore permitted in the area in question which is
necessarily be an intention to evade otherwise a flood zone and therefore also
payment of duty, which entails the levy of the imposition of additional stamp duty
penalty. Secondly the words "not was unjustified. We are of the opinion
1196 INDIAN LAW REPORTS ALLAHABAD SERIES

that since the matter is being remitted by his moral duty to protect his wife-
back to the Collector it would be open to deserves appropriate punishment of 12
years rigorous imprisonment.
the appellant to raise all such and other
pleas before the authority who would now Held: Para-30
proceed in the matter in light of the From the facts and circumstances of the
directions made hereinafter. case it is clear that the appellants had
initially no intention or premeditation for
32. Accordingly, the Special Appeal murder/ homicide and the deceased had
been inflicted grievous injuries on her legs
shall stand allowed. The judgment and only. This possibility cannot be ruled out
order of the learned Single Judge dated 17 that in a domestic quarrel the appellants,
August 2015 shall stand set aside. who are rustic villagers, had beaten the
Consequent to what has been held above, bahu (daughter-in-law) of the house
the orders of the Collector dated 3 August savagely due to which such injury or shock
2015 and 10 November 2014 are hereby had been caused that resulted in the death
of the victim. Appellants had no criminal
quashed. The matter shall stand remitted history and they are in incarceration for
back to the Collector, Gautambudh Nagar about more than five years. Their age is also
for passing appropriate orders in pertinent. Considering their age at the time
accordance with law after affording due of their statement u/s 313 CrPC, the Bal
opportunity of hearing to the appellant. Chand and Smt. Ramwati Devi are senior
-------- citizens, and their age at present is more
APPELLATE JURISDICTION than 63 years and 60 years respectively. In
CRIMINAL SIDE ordinary course they are not expected to do
DATED: ALLAHABAD 18.09.2015 such thrashing of the deceased. They may
be dealt with some leniency. But the age of
BEFORE
appellant Gullu is about 37-38 years at
present, and being the husband of the
THE HON'BLE AMRESHWAR PRATAP SAHI, J.
deceased it was his legal and moral duty to
THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.
protect his wife, but instead he was
involved in beating his wife to the extent
Criminal Appeal No. 1472 of 2012 that she succumbed to her injuries. He
deserves appropriate punishment without
Gullu & Ors. ...Appellants much leniency. When we apply the settled
Versus principle of law which has been
State of U.P. ...Opp. Party enumerated in the aforementioned cases,
the sentence of life imprisonment of the
Counsel for the Appellants: appellants under Section 304 IPC appears
Sri Sudist, Sri Janardan Singh Yadav inappropriate. In the present case after
considering the circumstances presented
Counsel for the Respondents: before the Sessions Judge and before us
A.G.A. during hearing of appeal, it appears
appropriate that, in the present case the
sentences of appellants Bal Chand and Smt.
Criminal Appeal-offence under section 498-
Ramwati should not exceed more than 7
A, 304-B and ¾ D.P. Act-conviction of life
years' imprisonment, but the sentence of
imprisonment-keeping in view the object of
Gullu should be 12 years.
criminal law-appropriate adequate and
proportionate-considering gravity age of
Case Law discussed:
mother-in-law-not expected to do such
(2008) 15 SCC 753; (2013) 9 SCC 516; (1994)
thrashing of deceased-hence conviction
6 SCC 727; (2015) 6 SCC 1; (1976) 1 SCC
reduced to 7 years-but the husband bound
281; (2009) 15 SCC 635.
3 All] Gullu & Ors. Vs. State of U.P. 1197

(Delivered by Hon'ble Pramod Kumar was haemorrhage and shock as a result of

Srivastava, J.) the said ante-mortem injuries. In this
report approximate time of death was
1. This appeal has been preferred reported about 1 day from the time of
against the conviction and punishment postmortem. After completion of
dated 28.2.2012 passed in State Vs. Gullu investigation police had submitted charge-
and others relating to Case Crime No. 689 sheet against three accused Gullu, Bal
of 2010, police station Mardah, district Chand and Ramwati for offences under
Ghazipur by which three accused Gullu, section 498-A, 304-B IPC and under
Bal Chand and Smt . Ramwati were section 3/4 Dowry Prohibition Act.
convicted for charge under section 302/34
IPC and were punished with 4. During trial all the accused were
imprisonment for life and fine of Rs. charged for offences under section 498-A,
5000/- (in default of payment three 304 B IPC and under section 3/4 Dowry
months simple imprisonment). Prohibition Act, alongwith alternative
charge framed later on for offence under
2. Prosecution case in brief was that section 302 IPC. Accused had pleaded not
Tuliya Devi, daughter of informant guilty and claimed to be tried.
Bhullu Rajbhar (PW-1) was married to
Gullu 5 years ago. After marriage Tuliya 5. In support of charges prosecution
Devi was treated with cruelty by her side examined PW-1, Bhullu (informant),
husband Gullu, father-in-law Bal Chand PW-2 Barmati (mother of the deceased),
and mother-in-law Ramwati for demand PW-3 - Constable Sunil Kumar Singh
of dowry. For this reason these three (who prepared chik FIR and registerd
accused had committed murder of Tuliya case), PW-4 - Dr. Krishna Kumar Verma
Devi on 8.5.2010 by inflicting injuries on (who performed the postmortem), PW-5
her body at their house situate in village Vinay Kumar Rai, Naib Tehsildar (for
Chaubepur, police station- Mardah, inquest report) and PW-6 Chrinjeev Nath
district Ghazipur and tried to dispose of Sinha (Investigation Officer). These
her dead body. After receiving knowledge witnesses had proved documents of the
of this incident, victim's father Bhullu prosecution marked as EX-Ka-1 to Ex-
(informant) had given a written report Ka-14.
(Ex-Ka-1) to the police on the basis of
which case crime no. 689 of 2010 was 6. After closure of prosecution
registered. evidence statement of accused were
recorded in which they denied the facts of
3. In the aforesaid case inquest of charge as well as evidence adduced
the dead body was performed on against them, without any specific
08.05.2010 and postmortem of the averments. Defence side had examined
deceased was conducted the same evening DW-1 Madan, r/o village Chaubeypur.
at 9:50 pm. In the postmortem report
several lacerated wounds and other marks 7. After receiving evidence from both
of injuries were found on the dead body the sides and after affording opportunity of
of the deceased. In postmortem (Ex-Ka-1) hearing as well as considering the argument
the doctor had opined that cause of death of the parties, learned Addl. Sessions Judge
1198 INDIAN LAW REPORTS ALLAHABAD SERIES

passed judgment dated 28.2.2012 by which 9.Lacerated wound 8 cm x 3 cm

all the accused were acquitted from the below front of left kneel under lying bone
charges under section 498-A, 304-B IPC and was fractured.
3/4 Dowry Prohibition Act, but were
convicted for the charge under section 302- 10. PW-4 the doctor reported that
IPC. Thereafter the trial court had afforded the cause of death of victim-deceased
an opportunity of hearing on the point of Tuliya Devi was shock and haemmerhage
quantum of sentence to the accused and due to the above mentioned ante-mortem
passed orders of punishment as above. injuries. Although the defence had
Aggrieved by this judgment dated 28.2.2012 adduced one witness to indicate that the
all the three accused have preferred the cause of death of the deceased may be
present appeal. accidental falling from the roof, and DW-
1 Madan was examined in this regard but
8. Sri Sudist and Sri Janardan Singh these facts could not be substantiated in
Yadav appeared for appellants; and State the light of available evidence and
was represented by Mrs. Usha Kiran, circumstances.
AGA.
11. A perusal of the impugned
9. A perusal of evidence adduced judgment reveals that this finding of
during trial indicates that during post- learned Additional Sessions Judge is
mortem following ante-mortem injuries correct that deceased Tuliya Devi had
were found on the dead body of the died due to injuries found on her body in
deceased Tuliya Devi that were caused or the house of the accused-appellants at
occurred approximately at the time about the time mentioned in the charge,
mentioned in the charge, i.e., anytime in and the accused-appellants were
the night of 8/9-5-2010: responsible for causing such injuries to
Tuliya Devi. In these circumstances, the
1.Lacerated wound left side chin 6 trial court had rightly reached to the
cm x 1 cm mussel deep chin. conclusion that due to the above
2.Lacerated wound from right mentioned deliberate caused injuries
shoulder to just below right elbow 35 cm Tuliya Devi died, and accused-appellants
x 2 cm x bone deep. are responsible for inflicting those
3.Abrasion 5cm x 2 cm just laterac of homicidal injuries.
left eye.
4.Abrasion on top of right shoulder 8 12. Learned Additional Sessions
cm x 4 cm. Judge had considered facts and
5.Abrasion 20cm x 10 cm right side circumstances including evidence
chest. adduced and reached to the conclusion
6.brasion 8 cm x 2 cm right iliac that though there is no conclusive
chest. evidence relating to dowry death and
7.Lacerated wound 5 cm x 3 cm at demand of dowry, but injuries found on
middle of front of right of leg underlying body of the deceased were not accidental.
bond was fractured. Trial Court found that those injuries were
8.Lacerated wound 6 cm x 3 cm just homicidal, for inflicting of which accused
below right knee. persons were responsible, because it were
3 All] Gullu & Ors. Vs. State of U.P. 1199

only they who were present in their house impose an appropriate sentence as that is
when such injuries had occurred on the permissible in law.
body of the deceased Tuliya Devi.
15. We have given our anxious
13. Learned counsel appearing for the consideration to the rival submissions and
appellants fairly admitted the contents of perused the material available on record
facts relating to charge, namely victim Tuliya of the court below. The appeal is being
Devi having succumbed to the injuries found disposed off with the consent of the
on her body in the house of appellants. He learned counsel for both sides dispensing
argued that he is not challenging the findings with the formality of availability of paper
of fact of the impugned judgment, but is books.
questioning the nature of the offence and the
sections on which the accused-appellants 16. After the perusal of original
were charged and convicted and the quantum record and the evidence available we are
of sentences awarded. According to him, of the opinion that this finding of fact is
taking note of various factors including the not erroneous that the three accused Gullu
age of the appellants-accused, their first guilt, Rajbhar, Bal Chand and Smt. Ramwati
the charged incident was committed without had been involved in causing such
premeditation in a sudden quarrel in the heat injuries. These injuries, due to which
of passion, the injury being on the non-vital Tuliya Devi was seriously injured and
part of the body and the death was because of later died, were of course on non-vital
such injuries which were not sufficient to part of the body of deceased, but she died
cause death in ordinary course, the award of due to haemorrhage and shock of these
life imprisonment and fine of Rs. 5000/- in injuries. A minute scrutiny of the nature
default, to further undergo RI for three of injuries show that either there were
months is excessive. He pointed out that superficial injuries of abrasions on the
these points were mentioned during the body of victim or there were grievous
arguments and at the time of hearing on the injuries on non-vital part of body (that is
point of quantum of sentence, but were not two fractures on legs). Therefore, in such
considered in the judgment of conviction and circumstances, it has to be considered as
at the time of awarding punishment because to whether the act causing injuries to the
punishment was being awarded for Section deceased resulting in her death was
302 IPC in which life sentence is minimum. murder or whether it was a culpable
Learned counsel for the appellants contended homicide not amounting to murder.
that in this case conviction should be for the
offence under section 304 IPC, and for the 17. Culpable homicide is murder if
aforesaid reasons punishment should not be the act which causes death is done with
the maximum possible, and the said sentence the intention of causing death or is done
of punishment should be mitigated. with intention of causing a bodily injury
and injury intended to be inflicted is
14. Learned A.G.A. appearing for sufficient in the ordinary course of nature
the respondent State submitted that the to cause death. All murder is culpable
Court had not erred in conviction or homicide but not vice versa. It is the
award of punishment. He also contended degree of probability of death which
that the Court has always the liberty to determines whether a culpable homicide
1200 INDIAN LAW REPORTS ALLAHABAD SERIES

is of the gravest, medium or the lowest cause death. Once the intention to cause
degree. the bodily injury is actually found to be
proved, the rest of the enquiry is purely
18. In "Kesar Singh v. State of objective and the only question is
Haryana, (2008) 15 SCC 753" Hon'ble whether, as a matter of purely objective
Apex had held : inference, the injury is sufficient in the
"To put it shortly, the prosecution ordinary course of nature to cause death.
must prove the following facts before it No one has a licence to run around
can bring a case under Section 300 inflicting injuries that are sufficient to
"Thirdly": cause death in the ordinary course of
First, it must establish, quite nature and claim that they are not guilty
objectively, that a bodily injury is present; of murder. If they inflict injuries of that
Secondly, the nature of the injury kind, they must face the consequences;
must be proved; these are purely objective and they can only escape if it can be
investigations. shown, or reasonably deduced that the
Thirdly, it must be proved that there injury was accidental or otherwise
was an intention to inflict that particular unintentional."
bodily injury, that is to say, that it was not
accidental or unintentional, or that some 19. In the matter in hand it is proved
other kind of injury was intended. from the evidence that the charged act was
Once these three elements are proved committed by appellants without intention
to be present, the enquiry proceeds further of murder, without use of any formal
and, weapon and without any pre-planning.
Fourthly, it must be proved that the From the evidence, it appears probable that
injury of the type just described made up the appellants had willfully caused injures
of the three elements set out above is to the deceased and these injures were
sufficient to cause death in the ordinary inflicted without properly knowing as to
course of nature. This part of the enquiry whether they may cause death or not.
is purely objective and inferential and has Though two of the injuries caused by them
nothing to do with the intention of the were grievous but there was every
offender. possibility of the deceased's survival, as
Once these four elements are they were fractures of leg. The grievous
established by the prosecution (and, injuries were on non-vital part of the body.
indisputably, the burden is on the Other injuries were simple and superficial.
prosecution throughout) the offence is Apparently knowing these facts fully well
murder under Section 300 "Thirdly". It the appellants had inflicted blows at the
does not matter that there was no deceased. This matter therefore comes
intention to cause death. It does not matter within exception 1 of Section 300 IPC.
that there was no intention even to cause Therefore the appellants are found guilty of
an injury of a kind that is sufficient to act of culpable homicide not amounting to
cause death in the ordinary course of murder which is punishable under section
nature (not that there is any real 304 IPC.
distinction between the two). It does not
even matter that there is no knowledge 20. The maximum punishment for
that an act of that kind will be likely to the offence u/s 304 IPC is imprisonment
3 All] Gullu & Ors. Vs. State of U.P. 1201

for life. It has to be be considered as to is the duty of every court to award proper
whether sentence of life imprisonment sentence having regard to the nature of
awarded in the present case by the trial the offence and the manner in which it
court is appropriate. It is settled law that was executed or committed. The court
the courts are obliged to respect the must not only keep in view the rights of
legislative mandate in the matter of the victim of the crime but also the
awarding of sentences in all such cases. In society at large while considering the
"Hazara Singh v. Raj Kumar, (2013) 9 imposition of appropriate punishment."
SCC 516" Hon'b'e Apex Curt had held
that : 21. Only because Section 304 IPC
provides for life imprisonment as the
"it is clear that the maximum maximum sentence, does not mean that
punishment provided therein is the Court should mechanically proceed to
imprisonment for life or a term which impose the maximum sentences, more
may extend to 10 years. Although Section particularly when the incident had
307 does not expressly state the minimum occurred suddenly, during the heat and
sentence to be imposed, it is the duty of passion of any domestic quarrel, without
the courts to consider all the relevant pre-meditation or pre-planning.
factors to impose an appropriate sentence.
The legislature has bestowed upon the 22. In Hem Chand v. State of
judiciary this enormous discretion in the Haryana, (1994) 6 SCC 727 Hon'ble Apex
sentencing policy, which must be Court had held that :
exercised with utmost care and caution.
The punishment awarded should be "As mentioned above, Section 304-B
directly proportionate to the nature and IPC only raises presumption and lays
the magnitude of the offence. The down that minimum sentence should be
benchmark of proportionate sentencing seven years but it may extend to
can assist the Judges in arriving at a fair imprisonment for life. Therefore awarding
and impartial verdict." extreme punishment of imprisonment for
"17. We reiterate that in operating life should be in rare cases and not in
the sentencing system, law should adopt every case."
the corrective machinery or deterrence
based on factual matrix. The facts and 23. In Devidas Ramachandra
given circumstances in each case, the Tuljapurkar v. State of Maharashtra,
nature of the crime, the manner in which (2015) 6 SCC 1 Hon'ble Apex Court had
it was planned and committed, the motive held :
for commission of the crime, the conduct
of the accused, the nature of weapons "While we see no reason to differ
used and all other attending circumstances with the concurrent findings recorded by
are relevant facts which would enter into the trial court and the High Court, we do
the area of consideration. We also see some substance in the argument raised
reiterate that undue sympathy to impose on behalf of the appellants that keeping in
inadequate sentence would do more harm view the prosecution evidence, the
to the justice system to undermine the attendant circumstances, the age of the
public confidence in the efficacy of law. It accused and the fact that they have
1202 INDIAN LAW REPORTS ALLAHABAD SERIES

already been in jail for a considerable 25. One of the prime objectives of
period, the Court may take lenient view as criminal law is imposition of an
far as the quantum of sentence is appropriate, adequate, just and
concerned. The offences having been proportionate sentence commensurate
proved against the accused and keeping in with the nature and gravity of the crime
view the attendant circumstances, we are and the manner in which the crime is
of the considered view that ends of justice done. For sentencing an accused on proof
would be met, if the punishment awarded of crime the courts have evolved certain
to the appellants is reduced." principles; the twin objective of the
sentencing policy is deterrence and
24. In 'Ramashraya Chakravarti v. correction. It lies within the discretion of
State of M.P., (1976) 1 SCC 281' Hon'ble the court to choose a particular sentence
Apex Court had observed : within the available range from minimum
to maximum. What sentence would meet
"To adjust the duration of the ends of justice depends on the facts
imprisonment to the gravity of a particular and circumstances of each case and the
offence is not always an easy task. court must keep in mind the gravity of the
Sentencing involves an element of crime, motive for the crime, nature of the
guessing but often settles down to practice offence and all other attendant
obtaining in a particular court with circumstances.
inevitable differences arising in the
context of the times and events in the light 26. In considering the adequacy of
of social imperatives. It is always a matter the sentence which should neither be too
of judicial discretion subject to any severe nor too lenient the court has,
mandatory minimum prescribed by law." therefore, to keep in mind the motive and
"In judging the adequacy of a magnitude of the offence, the
sentence the nature of the offence, the circumstances in which it was committed
circumstances of its commission, the age and the age and character (including his
and character of the offender, injury to antecedents) and situation in life of the
individuals or to society, effect of the offender.
punishment on the offender, eye to
correction and reformation of the 27. In Gurmukh Singh v. State of
offender, are some amongst many other Haryana, (2009) 15 SCC 635 Hon'ble
factors which would be ordinarily taken Apex Court had discussed points to be
into consideration by courts trial courts in taken into account before passing
this country already overburdened with appropriate sentence as under :
work have hardly any time to set apart for
sentencing reflection. This aspect is "23. These are some factors which
missed or deliberately ignored by the are required to be taken into consideration
accused lest a possible plea for reduction before awarding appropriate sentence to
of sentence may be considered as the accused. These factors are only
weakening his defence. In a good system illustrative in character and not
of administration of criminal justice pre- exhaustive. Each case has to be seen from
sentence investigation may be of great its special perspective. The relevant
sociological value." factors are as under:
3 All] Gullu & Ors. Vs. State of U.P. 1203

(a) Motive or previous enmity; receives appropriate sentence, in other

(b) Whether the incident had taken words, sentence should be according to
place on the spur of the moment; the gravity of the offence. These are some
(c) The intention/knowledge of the of the relevant factors which are required
accused while inflicting the blow or to be kept in view while convicting and
injury; sentencing the accused."
(d) Whether the death ensued
instantaneously or the victim died after 28. Now the matter is limited to
several days; sentence for offence u/s 304 IPC, and we
(e) The gravity, dimension and have to consider about the appropriate
nature of injury; sentence for the appellants in this case.
(f) The age and general health For it aggravating circumstances relating
condition of the accused; to the crime while mitigating
(g) Whether the injury was caused circumstances relating to the criminal has
without premeditation in a sudden fight; to be considered.
(h) The nature and size of weapon
used for inflicting the injury and the force 29. So far as aggravating
with which the blow was inflicted; circumstances relating to the crime is
(i) The criminal background and concerned, from the evidence of the case
adverse history of the accused; it is clear that the appellants had
(j) Whether the injury inflicted was deliberately been instrumental in causing
not sufficient in the ordinary course of injuries on the whole body of deceased
nature to cause death but the death was who was a young lady, without any
because of shock; satisfactory explanation, and had tried to
(k) Number of other criminal cases conceal their guilt by adducing evidence
pending against the accused; to prove it to be a case of accident by fall
(l) Incident occurred within the from roof.
family members or close relations;
(m) The conduct and behaviour of 30. From the facts and circumstances
the accused after the incident. Whether of the case it is clear that the appellants had
the accused had taken the injured/the initially no intention or premeditation for
deceased to the hospital immediately to murder/ homicide and the deceased had
ensure that he/she gets proper medical been inflicted grievous injuries on her legs
treatment? only. This possibility cannot be ruled out
These are some of the factors which that in a domestic quarrel the appellants,
can be taken into consideration while who are rustic villagers, had beaten the
granting an appropriate sentence to the bahu (daughter-in-law) of the house
accused. savagely due to which such injury or shock
24. The list of circumstances had been caused that resulted in the death
enumerated above is only illustrative and of the victim. Appellants had no criminal
not exhaustive. In our considered view, history and they are in incarceration for
proper and appropriate sentence to the about more than five years. Their age is
accused is the bounded obligation and also pertinent. Considering their age at the
duty of the court. The effort of the court time of their statement u/s 313 CrPC, the
must be to ensure that the accused Bal Chand and Smt. Ramwati Devi are
1204 INDIAN LAW REPORTS ALLAHABAD SERIES

senior citizens, and their age at present is ORIGINAL JURISDICTION

more than 63 years and 60 years CIVIL SIDE
respectively. In ordinary course they are DATED: ALLAHABAD 10.09.2015
BEFORE
not expected to do such thrashing of the
THE HON'BLE BALA KRISHNA NARAYANA, J.
deceased. They may be dealt with some THE HON'BLE MRS. VIJAY LAKSHMI, J.
leniency. But the age of appellant Gullu is
about 37-38 years at present, and being the Criminal Misc. Writ Petition No. 4357 of 2015
husband of the deceased it was his legal
and moral duty to protect his wife, but Vinod Valmiki ...Petitioner
instead he was involved in beating his wife Versus
to the extent that she succumbed to her State of U.P. & Ors. ...Respondents
injuries. He deserves appropriate
Counsel for the Petitioner:
punishment without much leniency. When
Sri Vikas Chandra Tiwari, Sri Sudhir
we apply the settled principle of law which
Mehrotra
has been enumerated in the
aforementioned cases, the sentence of life Counsel for the Respondents:
imprisonment of the appellants under A.G.A., Sri Brij Lal, Sri Vikas Chandra
Section 304 IPC appears inappropriate. In Tiwari, Sri Vijay Mishra
the present case after considering the
circumstances presented before the National Security Act-Section-3(3)-Detention
Sessions Judge and before us during on ground of taking part in illegal
hearing of present case the sentences of activities detenue already in jail-without
appellants Bal Chand and Smt. Ramwati recording satisfaction of being enlarged
on bail can repeat offence-such omission
should not exceed more than 7 years'
vitiated the impugned-order.
imprisonment, but the sentence of Gullu
should be 12 years. Held: Para-16
In the present case the detaining authority
31. In view of above facts and has merely mentioned in the ground of
detention that the bail application filed by
discussion, the order of conviction u/s 302
the petitioner before the Chief Judicial
IPC imposed on the each appellants is Magistrate-Ist, Ghaziabad was rejected and
hereby modified u/s 304 IPC, and the thereafter the petitioner had moved his bail
sentence of imprisonment for life is application before the Sessions Judge,
modified for appellants Bal Chand and Ghaziabad and there was possibility of the
Smt. Ramwati to rigorous imprisonment petitioner's indulging in similar activities
for seven years each. The sentence of prejudicial to the maintenance of public
order on his being enlarged on bail. He has
appellant Gullu Rajbhar is modified to not recorded his satisfaction in the
rigorous imprisonment for twelve years. impugned order that there was real
With these modifications of conviction, possibility of his being released on bail
punishment and sentence, the appeal which omission in our opinion has totally
stands disposed off. vitiated the impugned order.

Case Law discussed:

32. Let the copy of this judgment be (1975) 3 SCC 198; 1990 (27) ACC 621.
sent to Sessions Judge, Ghazipur of
ensuring compliance. (Delivered by Hon'ble Bala Krishna
-------- Narayana, J.)
3 All] Vinod Valmiki Vs. State of U.P. & Ors. 1205

1. Heard learned counsel for the downing the shutters of their shops. Apart
petitioner, learned A.G.A. for the State from the aforesaid, the movement of
and Sri Brij Lal, learned counsel for the vehicles deployed for supplying milk and
Union of India. vegetables to Baghpat, ambulance and
vehicles engaged in supplying gas was
2. The petitioner has been detained totally disturbed. However the situation
by the District Magistrate, Ghaziabad vide was brought under control by the police
his order dated 20.09.2014 passed by him force which had reached the place of
in the exercise of his power under Section occurrence.
3(3) of the National Security Act
(hereinafter referred to as the 'Act'). 4. The grounds of detention further
reveal that on 28.8.2014 the petitioner
3. The relevant facts giving rise to along with his associates (about 150 in
this writ petition as narrated in the number) with the common intention of
grounds of detention under Section 8 of disturbing the communal harmony
the Act which were served upon the reached Sunita Vihar shouting slogans of
petitioner along with the detention order 'Jai Sri Ram' and organised a road block
on 20.09.2014 while he was in District at no.2. Bus Station Indrapuri on Loni-
Jail, Ghaziabad on account of his being Delhi Saharanpur National Highway.
accused in Case Crime no. 2233 of 2014, Upon being informed about the activities
P.S. Loni, district-Ghaziabad are that of the petitioner and his companions
following lodging of an F.I.R. at P.S. Gorakh Nath Yadav, Inspector Incharge,
Loni, district-Ghaziabad under Section PS Loni reached the place of road block
354(B) and 506 I.P.C. by one Smt. Kishan with his force and tried to coax and
Kumari against one Sayeed Mohammad persuade the petitioner and his associates
alleging there in that aforesaid Sayeed to lift the road block but instead of
Mohammad had committed rape of her listening to him they became agitated and
minor daughter Rakhi, aged about ten started firing at the police force and
years, which was later converted under created obstruction in the performance of
Section 376(2) (D) I.P..C and Section 4 their official duties by the police officers
The Protection of Children From Sexual and the members of the police force. They
Offences Act and aforesaid Sayeed also set ablaze old tyres and wooden
Mohammad being arrested and sent to benches of the shops of public by pouring
jail, the petitioner along with his kerosene oil thereon and indulged in arson
associates, with the object of giving a and looting in the nearby shops.
communal complexion to the whole Government vehicles of the police
incident and disturb communal harmony officers who had reached the spot were
started indulging in hooliganism against also damaged. Not only this the petitioner
the muslim community as a result fear and his associates had pelted stones at
and terror prevailed amongst the public Mustafa Masjid and Ek Minar Masjid
causing a stampede with people running situate in Mangal Bazar, Sunita Vihar 100
helter-skelter leaving behind their shoes fit road and Saraswati Vihar (Kirti Vihar)
and slippers on the road and hiding respectively and shouted anti-muslim
themselves in their houses and shops by slogans which caused a commotion
closing the doors of their houses and forcing shop keepers to close their shops.
1206 INDIAN LAW REPORTS ALLAHABAD SERIES

Fear and terror prevailed all over and after his bail application was rejected by
communal harmony was totally disturbed the Chief Judicial Magistrate-Ist,
and public order shattered. Ghaziabad and there was real possibility
of petitioner indulging in similar activities
5. People were prevented from prejudicial to the public order on his
going to their offices and establishments being enlarged on bail.
and an atmosphere of undeclared curfew
prevailed Additional forces had to be 7. On account of the above the
requisitioned from other police stations detaining authority was satisfied that
and adjoining districts after Senior detention of the petitioner under the Act
Superintendent of Police, Ghaziabad was was essential for preventing the petitioner
compelled to enforce Red Scheme and it from indulging in activities prejudicial to
was only after three or four hours that maintenance of public order. The
situation could be brought under control detention order dated 20.09.2014, grounds
on the arrival of additional police forces. of detention under Section 8 of the Act
The aforesaid incident had caused and other relevant papers were sent by the
tremendous resentment amongst the respondent no. 2 through a special
muslim community. On the basis of F.I.R. messenger to the State Government on the
of the aforesaid incident lodged by the same day which were received in the
Inspector Incharge Gorakh Nath Yadav at Home Department of the State
police station-Loni Case Crime no. 2235 Government on 21.09.2012. Petitioner
of 2014, under sections 147, 148, 149, was produced before the U.P. Advisory
436, 341, 336, 332, 353, 153A, 395, 397, Board on 13.10.2014. After the detention
307 and 427 I.P.C. and section ¾ order was approved by the U.P. Advisory
Prevention of Damages to Public Property Board, the report of the U.P. Advisory
Act and section 7 Criminal Law Board and the record of the case were
Amendment Act was registered against transmitted to the State Government along
the petitioner and his associates. with a letter of Registrar, U.P. Advisory
Board (detention) dated 30.10.2014 which
6. Grounds of detention also indicate was received in the concerned section of
that complicity of the petitioner and his the State Government on 03.11.2014. On
associates in the commission of the receipt thereof the State Government took
aforesaid offences was fully established a decision on 07.11.2014 to confirm the
from the statements of the witnesses detention order and keep the petitioner
recorded during free and fair investigation under detention for a period of twelve
of the aforesaid incident and after years from the date of passing of the order
completion of investigation charge sheet of detention on 20.09.2014.
was submitted against the petitioner and
all his associates under the aforesaid 8. Learned counsel for the petitioner
offences. News of the aforesaid incident submitted that the District Magistrate,
was published in several national level Ghaziabad has not applied his mind to the
news papers. The petitioner who was in facts of the case and the material on
Ghaziabad District Jail had moved an record and he has passed the impugned
application for being released on bail order in a routine manner on the report
before the Sessions Judge, Ghaziabad submitted to him by the police authorities.
3 All] Vinod Valmiki Vs. State of U.P. & Ors. 1207

The detention authority has failed to Sayeed Mohammad which was later
record any satisfaction in the impugned converted into section 376(2)(D) and
order that there was real possibility of the Section 4 of POCSO Act and aforesaid
petitioner, who was already in judicial Sayeed Mohammad was arrested and sent
custody, being released on bail. Further to jail. There was no inaction or any laxity
the material before the detaining authority on the part of the local police in taking
was not sufficient to satisfy him that after necessary action against the accused
being released on bail the petitioner shall warranting the activities in which
again indulge in activities prejudicial to petitioner and his associates had indulged
the public order and hence, the impugned on 27.8.14 & 28.8.14 which had totally
order which is per-se illegal may be set disturbed the public order and tranquility.
aside and the petitioner be set at liberty
forthwith. 10. Learned A.G.A. further
submitted that in the aforesaid incidents
9. Per contra, learned A.G.A. the petitioner and his associates had not
submitted that the impugned order has only indulged in acts of arson and looting
been passed by the detaining authority on but had also illegally blocked the Loni-
the basis of petitioner's involvement in Delhi-Saharanpur highway disrupting the
two incidents which had taken place on movement of the vehicles deployed for
27.08.2014 and 28.8.2014 in Ghaziabad supplying vegetables and milk to Hapur
city along with his associates and supplying gas and ambulance services
(approximately 150 in number). The as well. Not only this the petitioner and
F.I.R. of the aforesaid incident which was his associates had fired at the police
lodged by the Inspector Incharge Gorakh officers and the members of the police
Nath Yadav was registered as Case Crime force, who had reached the place of
no. 2235 of 2014, under Section 354(B) incident and tried to persuade him and his
and 506 I.P.C. against the petitioner and associates to stop their activities and they
his associates at police station-Loni, had also caused damage the government
district-Ghaziabad. The allegations vehicles.
against the petitioner were that he along
with his associates had indulged in 11. Learned A.G.A. lastly submitted
activities on both the aforesaid dates that detaining authority had passed the
which had the effect of totally disturbing impugned order after being fully satisfied
the communal harmony and shattering on the basis of the material produced
public order as they had tried to give before him that on being released on bail
communal complexion to an isolated the petitioner may again indulge in
incident which had taken place on activities prejudicial to the public order
27.08.2014, in which a minor girl Rakhi and the same does not suffer from any
aged about ten years was raped by one illegality or infirmity, hence the present
Sayeed Mohammad although on the basis writ petition which is devoid of any
of the first information report lodged by merits is liable to be dismissed.
the mother of the victim Case Crime no.
2233 of 2014, was registered at PS-Loni, 12. After having very carefully
district-Ghaziabad initially under section examined the submissions made by
354(B) & 506 IPC against the aforesaid learned counsel for the parties and
1208 INDIAN LAW REPORTS ALLAHABAD SERIES

perused the impugned order as well as the the case of Kamarunnissa vs. Union of
other material brought on record, we find India and another reported in 1990(27)
that the only issue involved in this writ ACC 621 SC and in paragraph 13 of the
petition is that whether the failure of the aforesaid case the The Hon'ble Supreme
District Magistrate to record in the Court has held as hereunder :-
impugned order that there was strong
possibility of the petitioner, who was "13. From the catena of decisions
already in judicial custody on account of referred to above, it seems clear to us that
his being accused in Case Crime no. 2235 even in the case of a person in custody a
of 2014, under sections 147, 148, 149, detention order can validly be passed(1) if
436, 341, 336, 332, 353, 153A, 395, 397, the authority passing the order is aware of
307 and 427 I.P.C. and section ¾ the fact that he is actually in custody; (2)
Prevention of Damages to Public Property if he has reason to believe on the basis of
Act and section 7 Criminal Law reliable material placed before him(a) that
Amendment Act being released on bail there is real possibility of his being
has vitiated the impugned order and released on bail, and (b) that on being so
whether the subsequent recording of his released he would in all probability
satisfaction that on being released on bail indulge in prejudicial activity; and (3) if it
there was possibility of the petitioner's is felt essential to detain him to prevent
indulging in similar activities which were him from so doing. If the authority passes
prejudicial to the public order on his an order after recording his satisfaction in
being enlarged on bail would validate the his behalf, such an order can not be struck
impugned order. down on the ground that the proper course
for the authority was to oppose the bail
13. The Hon'ble Supreme Court of and if bail is granted notwithstanding such
India in paragraph 35 of its judgment opposition to question of before a higher
rendered in the case of Haradhan Saha & Court."
Another vs The State Of West Bengal &
Ors. reported in (1975) 3SCC 198 15. What follows from the above is
observed that where the concerned person that a valid preventive detention order
is actually in jail custody at the time when passed against a person in judicial custody
the order of detention is passed against must fulfill the conditions spelt out herein
him, and is not likely to be released for a above by the Apex Court and one such
fairly long time, it may be possible to essential condition is that there should be
contend that there could be no satisfaction real possibility of the person being
on the part of the detaining authority as to released on bail.
the likelihood of such a person indulging
in the activities which would jeoparadise 16. In the present case the detaining
the security of the State or the public authority has merely mentioned in the
order. ground of detention that the bail
application filed by the petitioner before
14. The Hon'ble Supreme Court has the Chief Judicial Magistrate-Ist,
laid down the principles as to when a Ghaziabad was rejected and thereafter the
detention order can be passed with regard petitioner had moved his bail application
to a person already in judicial custody in before the Sessions Judge, Ghaziabad and
3 All] Smt. Manju Devi & Ors. Vs. Motor Accident Claims Tribunal/Spl. Judge/A.D.J. Muzaffar Nagar 1209

there was possibility of the petitioner's loan-order not sustainable-quashed-

indulging in similar activities prejudicial direction to reduce the amount by
forthwith.
to the maintenance of public order on his
being enlarged on bail. He has not Held: Para-9 & 11
recorded his satisfaction in the impugned 9. Thus, once the application for
order that there was real possibility of his withdrawal of money is filed by the
being released on bail which omission in claimants, the Tribunal has to apply its
our opinion has totally vitiated the mind whether it would be in the interest of
impugned order. the widow, or illiterate, or minor claimants
to release the amount or not. While taking
decision in that regard, the Tribunal has to
17. The writ petition accordingly approach the problem from the view point
succeeds and is allowed. The impugned of the claimants.
order dated 20.09.2014 passed by District
Magistrate, Ghaziabad is hereby quashed. 11. As regard the shares of petitioner no.
1, it is noticeable that there are two
demand notices brought on record by her.
18. Let the petitioner, Vinod The first notice dated 29.4.2014 by
Valmiki be released from jail forthwith, if Allahabad Bank requires her to pay a sum
he is not wanted in any other case. There of Rs.59,339/- as the amount due and
shall be however, no order as to costs. payable towards loan taken by her late
-------- husband Dhamendra Mohan. The second
ORIGINAL JURISDICTION notice of even date refers a loan taken by
CIVIL SIDE
her on 22.10.2012, wherein she is required
to pay Rs.37,611/- alongwith interest.
DATED: ALLAHABAD 15.09.2015
Thus, there was sufficient material before
the Tribunal to establish that the claimants
BEFORE
were indebted to the bank and were in
THE HON'BLE MANOJ KUMAR GUPTA, J.
need of money.

C.M.W.P. No. 4714 of 2015 Case Law discussed:

(Matters under Article 227) (1994) 2 SCC 176; 2012 ACJ 698.

Smt. Manju Devi & Ors. ...Petitioners (Delivered by Hon'ble Manoj Kumar
Versus Gupta, J.)
Motor Accident Claims Tribunal/Spl.
Judge/A.D.J. Muzaffar Nagar ...Respondents
1. Heard learned counsel for the
Counsel for the Petitioners: petitioners.
Sri Onkar Singh
2. The petitioners alongwith one Smt.
Counsel for the Respondents: Vedvati made a claim for grant of
--- compensation under the provisions of the
Motor Vehicles Act, 19881 on account of
Constitution of India, Art.-227-Application death of Dharmendra Mohan in a motor
to with draw half of amount-invested in accident. The petition was registered as claim
fixed deposit-Accident Claim Tribunal
rejected saying ruse to withdraw the
petition no. 401 of 2011. Dharmendra
amount by claimant-held-Tribunal ought Mohan, who died in a road accident, was the
to have approach the problems of husband of petitioner no.1, father of
claimant-who were indebted by Bank petitioners no.2 and 3 and son of Smt.
1210 INDIAN LAW REPORTS ALLAHABAD SERIES

Vedvati. The Motor Accident Claims the amount coming to the share of
Tribunal by an award dated 31.10.2012 petitioner no. 2 and 3 and for deposit of
allowed the claim petition in part and remaining half in a fixed deposit was
directed for payment of compensation of contrary to the direction given in the
Rs.3,19,000/- to the claimant alongwith award dated 31.10.2012, whereunder the
interest @ 6% per annum, since 19.4.2011, entire amount coming to their share was
the date on which the claim petition was to be paid by means of a cheque.
filed. The award passed by the Motor
Accident Claims Tribunal further provides 5. The petitioners moved an
that petitioner no.1 would become entitled to application dated 11.2.2014 with a request
half of amount of compensation awarded by to the Tribunal to permit premature
the Tribunal and the remaining claimants encashment of fixed deposit receipts. It
would each get 1/6 of the total amount. A was stated in the application that the
further direction was issued that the amount deceased Dharmendra Mohan had taken
coming to the share of the petitioner no.1 and loan from the bank under KSY scheme
Smt.Vedvati would be released only to the and to liquidate the debt, a sum of
extent of half of the amount and the Rs.59,339/- was to be paid. Alongwith the
remaining amount would be invested in a application, various notices issued by the
fixed deposit of a nationalised bank for a Allahabad Bank calling upon the
period of three years. In respect of petitioners petitioners to deposit the remaining
no. 2 and 3, there was a specific direction for amount due and payable under KSY
payment of entire amount coming to their scheme, failing which legal action would
share by means of a crossed cheque. be taken against them, were duly filed.
The first notice dated 29.4.2014 calls
3. In compliance of the award, it is not upon petitioner no.1 to pay a sum of
in dispute that a sum of Rs.3,44,000/- was Rs.59,339/-, the second notice dated
deposited in Indian Bank by a cheque dated 29.4.2014 requires petitioner no.1 to pay a
5/2/2014. The Tribunal by order dated sum of Rs. 37,611/-, notices of even date
9.4.2014 directed the bank to apportion the requires petitioner nos. 3 and 4 to deposit
amount deposited in favour of the claimants Rs.57,960/- and Rs.37,386/- respectively.
in the following manner :-
6. The Motor Accident Claims
half of the amount alongwith interest Tribunal by impugned order dated
to be deposited in favour of the petitioner 22.4.2014 rejected the application filed by
no.1, 1/6 each in favour of petitioner no.2 the petitioners for premature encashment
and 3 and the remaining 1/6 in favour of of the fixed deposit receipts. The Tribunal
Smt. Vedvati. A further direction was has held that it appears from the notice
issued to the bank that half of the amount that the aforesaid loan was taken by them
coming to the share of each of the in the year 2012 whereas, under the award
claimant would be paid to them and of the Motor Accident Claims Tribunal,
remaining half would be deposited in sufficient amount was paid to them on
fixed deposit for a period of three years. 9.4.2014. As such, they could have
appropriated the said amount towards
4. Evidently, the direction issued by payment of the loan liability but it seems
the Tribunal for payment of only half of that the same was not done and thus the
3 All] Smt. Manju Devi & Ors. Vs. Motor Accident Claims Tribunal/Spl. Judge/A.D.J. Muzaffar Nagar 1211

application is merely a ploy employed by Rules, 2008, by inserting section 220-B,

the claimant to withdraw the money. relevant extract whereof is as under :-

7. Learned counsel for the "(i).The Claims Tribunal should, in

petitioners submitted that the impugned the case of minors, invariably order
order passed by the Tribunal is manifestly amount of compensation awarded to the
illegal and contrary to the guidelines, laid minor invested in long term fixed deposits
down by the Supreme Court in the case of at least till the date of the minor attaining
General Manager, Kerala State Road majority. The expenses incurred by the
Transport Corporation vs Susamma guardian or next friend may, however, be
Thomas2. It is further urged that the allowed to be withdrawn;
Tribunal has failed to apply its mind to (v). In the case of widows the Claims
the genuine need of money on part of the Tribunal should invariably follow the
petitioners to liquidate the loan liability. procedure set out in (i) above;
The Tribunal, it is urged, has failed to (viii). In all cases Tribunal should
take into consideration the fact that the grant to the claimants liberty to apply for
only person in the family who was withdrawal in case of an emergency. To
earning, had expired and therefore, certain meet with such a contingency, if the
amount was also required for daily amount awarded is substantial, the Claims
expenses and thus, it cannot be said that Tribunal may invest it in more than one
the application filed by them was a ploy Fixed Deposit so that if need be one such
to get the fixed deposit receipts encashed F.D.R. can be liquidated."
prematurely.
Thus, once the application for
8. The Supreme Court in the case of withdrawal of money is filed by the
Susamma Thomas (supra) has issued claimants, the Tribunal has to apply its
certain guidelines in order to "safeguard mind whether it would be in the interest
the feed from being frittered away by the of the widow, or illiterate, or minor
beneficiaries owing to ignorance, claimants to release the amount or not.
illiteracy and susceptibility to While taking decision in that regard, the
exploitation". However, even according to Tribunal has to approach the problem
the guidelines given in the said judgment, from the view point of the claimants.
the Tribunal is required to apply its mind
to the need of the claimants. It has been 10. In the instant case,the first thing
held in the said decision that in case the which the Tribunal failed to notice is that
money is required for expending any in the original award, direction was for
existing business or for purchase of payment of entire compensation coming
property for earning the livelihood, the to the share of the petitioners no. 2 and 3
Tribunal can release the whole amount of directly to them by means of a crossed
compensation to the claimant. cheque. No part of the amount coming to
their share was to be deposited in fixed
9. The directions given by the deposit. However, contrary to the
Supreme Court in the aforesaid decision direction in the award dated 31.10.2012,
have since been incorporated by carrying the Tribunal vide its order dated 9.4.2014
out amendment in the U.P. Motor Vehicle required the bank to invest 50% of the
1212 INDIAN LAW REPORTS ALLAHABAD SERIES

amount coming to their shares in fixed 13. In the case of A. V. Padma and
deposit. Thus, the direction for deposit of others vs. R. Venugopal and others3, the
50% of the amount coming to the share of Supreme Court permitted withdrawal of
petitioner no.2 and 3 being contrary to the money deposited in fixed deposit in
directions given in the award dated favour of widow to enable her to provide
31.10.2012, cannot be sustained and is a dwelling unit to her second daughter
hereby set aside. who is co-owner in the house, but was
residing in a rented accommodation on
11. As regard the shares of petitioner exorbitant rent. It is held that the widow
no. 1, it is noticeable that there are two was obliged to provide shelter to her
demand notices brought on record by her. daughter, and if the money remains
The first notice dated 29.4.2014 by locked in fixed deposit, it would only
Allahabad Bank requires her to pay a sum yield paltry interest, whereas, the
of Rs.59,339/- as the amount due and daughter would be compelled to pay
payable towards loan taken by her late exorbitance rent. It was held that the
husband Dhamendra Mohan. The second decision of the Tribunal to invest the
notice of even date refers a loan taken by amount in fixed deposit was a result of
her on 22.10.2012, wherein she is rigid and mechanical approach. The
required to pay Rs.37,611/- alongwith decision fully supports the case of the
interest. Thus, there was sufficient petitioner herein.
material before the Tribunal to establish
that the claimants were indebted to the 14. In view of the discussions made
bank and were in need of money. above, the impugned order passed by the
Tribunal dated 22.4.2012 is set aside. The
12. A supplementary affidavit has application filed by the petitioners paper
been filed by learned counsel for the no. 13-Ga shall stand allowed. The
petitioners stating that a sum of tribunal shall permit premature
Rs.88,000/- was paid to petitioner no.1 encashment of the FDR in favour of the
and an equal amount was deposited in petitioners, leaving alone the FDRs in the
fixed deposit in her name. It is not in name of Smt. Vedvati, for which no
dispute that Dharmendra Mohan, the request for premature encashment was
bread earner for the family had died. In made.
such situation, it should have been
visualised by the Tribunal that there are 15. The Tribunal shall ensure that
several other liabilities apart from daily compliance of this order is made within a
expenses which the claimants were to period of three weeks from date of
meet. In such view of the matter, the production of certified copy of this order,
request for release of additional sum by the petitioners, before the Tribunal.
which is in fixed deposit cannot be said to
be unreasonable or arbitrary or a mere 16. The petition stands allowed
ruse to withdraw the amount. The accordingly.
Tribunal while deciding the application --------
has approached the controversy in a ORIGINAL JURISDICTION
lopsided manner, without appreciating the CIVIL SIDE
DATED: ALLAHABAD 23.09.2015
view point of the claimants.
3 All] Muntjir Vs. General Manager, PNB Metlife India Insurance Co. Ltd. & Ors. 1213

BEFORE petition on the ground that a petition

THE HON'BLE MANOJ KUMAR GUPTA, J. under Article 226 would not be
maintainable, and the petitioner can only
C.M.W.P. No. 5490 of 2015 file a petition under Article 227 of the
(Mattes under Article 227) Constitution. It is further pointed out by
Muntjir ...Petitioner
learned counsel for the petitioner that he
Versus personally went to the Stamp Reporter
General Manager, PNB Metlife India and requested him to accept the petition,
Insurance Co. Ltd. & Ors. Respondents as framed, inasmuch as, there is no legal
embargo in maintaining a petition under
Counsel for the Petitioner: Article 226 of the Constitution,
Sri V.C. Dixit challenging the order of a tribunal.
Counsel for the Respondents:
2. He also placed reliance on the
------
judgment of the Supreme Court in the
Constitution of India, Art.-226-Jurisdiction-
case of Radhey Shyam & another Vs
writ of certiorari-order passed by Chhabi Nath & Others1 wherein,
permanent lok adalat-stamp reporter- according to him, the legal embargo in
objected to convert petition under Art.- maintaining a petition under Article 226
227-in view of Radhey Shyam case-held- of the Constitution, is in respect of orders
misconceived order passed by Tribunal passed by the Civil Courts and not in
stand on different footing-Tribunal-not
within perview of Civil Court-held-writ
respect of the order passed by a tribunal.
petition under Art.-226-maintainable. He points out that Stamp Reporter refused
to accept the petition and therefore, he
Held: Para-7 was compelled to change the provision of
Thus, it is clear that the judgment in the law under which, the petition is being
case of Radhey Shyam (supra) lays down filed from that under Article 226 to
the law only in relation to the orders of
civil courts and it does not extend to the
Article 227 of the Constitution.
orders passed by inferior tribunals or
courts, which are not civil courts. 3. He further submitted that the
petitioner is still seeking a writ of
Case Law discussed: certiorari and a writ of mandamus, as the
(2015) 5 SCC 423; (2003) 6 SCC 675; AIR
petition is directed against the order of
1967 SC 1
Permanent Lok Adalat, which is acting as
(Delivered by Hon'ble Manoj Kumar a tribunal and not a civil court.
Gupta, J.)
4. The submission made by learned
1. This petition as originally drafted counsel for the petitioner appears to have
under Article 226 of the Constitution is force. In the case of Radhey Shyam
for quashing of the order passed by the (supra), the Supreme Court was
Permanent Lok Adalat constituted under considering the reference made to it by a
the provisions of the Legal Services two judge bench, expressing doubts about
Authorities Act, 1987. It is pointed out by correctness of the law laid down in Surya
learned counsel for the petitioner that the Dev Rai vs Ram Chander Rai and others2
Stamp Reporter refused to accept the in so far as it held that interference with
1214 INDIAN LAW REPORTS ALLAHABAD SERIES

the judicial orders of civil courts is the Constitution. But the said dictum of
permissible by issuing a writ of certiorari. law, as noted above, is confined only to
In paragraph 27 of the referring order, judicial orders of civil courts and not
reliance was placed on paragraph 63 of those of the tribunals, which as noted
the Constitutional Bench judgment of 9 above, stand on a different footing. This is
judges in the case of Naresh Shridhar also clear from the following observations
Mirajkar and others vs State of made by the Supreme Court while
Maharashtra3. Paragraph 27 of the answering, the reference:-
referring order is extracted herein below:-
"... All courts in the jurisdiction of a
"It is clear from the law laid down in High Court are subordinate to it and
Mirajkar in para 63 that a distinction has subject to its control and supervision
been made between judicial orders of under Article 227. Writ jurisdiction is
inferior courts of civil jurisdiction and constitutionally conferred on all High
orders of inferior tribunals or court which Courts. Broad principles of writ
are not civil courts and which can not pass jurisdiction followed in England are
judicial orders. Therefore, judicial orders applicable to India and a writ of certiorari
passed by civil courts of plenary lies against patently erroneous or without
jurisdiction stand on a different footing in jurisdiction orders of Tribunals or
view of the law pronounced in para 63 in authorities or courts other than judicial
Mirajkar. The passage in the subsequent courts. There are no precedents in India
edition of Halsbury (4th Edn.) which has for High Courts to issue writs to
been quoted in Surya Dev Rai does not subordinate courts. Control of working of
show at all that there has been any change subordinate courts in dealing with their
in law on the points in issue pointed out judicial orders is exercised by way of
above." appellate or revisional powers or power of
(emphasis supplied) superintendence under Article 227.
Orders of civil court stand on different
5. Thus, while referring the matter to footing from the orders of authorities or
a Larger Bench, their Lordships of the Tribunals or courts other than
Supreme Court, drew a distinction judicial/civil courts......"
between the orders passed by the inferior (emphasis supplied)
courts of civil jurisdiction and the order of
inferior tribunals or courts, which are not 7. Thus, it is clear that the judgment
civil courts. Thus, the reference to the in the case of Radhey Shyam (supra) lays
larger bench was confined only to the down the law only in relation to the orders
consideration of the question regarding of civil courts and it does not extend to
scope of a writ of certiorari in relation to the orders passed by inferior tribunals or
the orders of civil courts and not those of courts, which are not civil courts.
inferior tribunals.
8. In such view of the matter, this
6. The Supreme Court while Court is of the opinion that the objection
answering the reference held that the being raised by the Stamp Reporter in
orders of the civil courts are not amenable relation to petitions filed under Article
to writ jurisdiction under Article 226 of 226 of the Constitution, challenging
3 All] State of U.P. & Ors. Vs. Raj Karan & Anr. 1215

orders of tribunal is not correct. The respondent was removed from

Accordingly, the petitioner is permitted to service unceremoniously by the
employer without any valid or cogent
convert this petition into that under
reason despite the workman having put
Article 226 of the Constitution, as it was in eleven years of service. The conduct of
originally drafted. the petitioner-employer tantamounts to
unfair labour practice as provided under
9. The office is directed to treat the the VIth schedule to the Industrial
petition, as one under Article 226 and to Disputes Act, by employing the workmen
as temporaries and to continue them for
place it before the appropriate court hearing such years with the object of depriving
such matters, after registering as a petition them of the status and privileges of
under Article 226 of the Constitution, if permanent workmen.
possible as fresh case on 29.9.2015.
Case Law discussed:
1990 (83) FLR 497; [2000 (86) FLR 649];
10. This order be placed before the
[2013 (139) FLR 541]; (1979) 2 SCC 80;
Stamp Reporter, for its guidance in (2007) 2 SCC 433; (2014) 7 SCC 177; (2007) 5
matters coming to it for reporting. SCC 755; (2006) 4 SCC 1; (2009) 8 SCC 556;
-------- (2014) 7 SCC 190; [2005] 5 SCC 591; (2014)
ORIGINAL JURISDICTION 11 SCC 85.
CIVIL SIDE
DATED: ALLAHABAD 01.09.2015 (Delivered by Hon'ble Suneet Kumar, J.)
BEFORE
1. The petitioner/employer is assailing
THE HON'BLE SUNEET KUMAR , J.
the award dated 05 March 2003 published on
Writ-C No. 6108 of 2004
15 October 2003 in Adjudication Case No.
528 of 1992 passed by Labour Court,
State of U.P. & Ors. ...Petitioners Gorakhpur. State Government on 27 August
Versus 1992 referred the following dispute:
Raj Karan & Anr. ...Respondents
"Whether the termination of service
Counsel for the Petitioner: of the workman Shri Raj Karan by its
S.C. employer w.e.f. 01.12.1991 is legal and
justified? If not, the relief workman is
Counsel for the Respondents:
entitled to get?"
S.K. Srivastava, Amit Yadav, Anil Yadav,
S.C., S.K. Chaubey, Shyam Narain,
Sudhanshu Narain 2. The case of the respondent/workman
is that he was engaged as Beldar by the
U.P. Industrial Dispute Act-1947-Section-6- Irrigation Department of the State since 1980,
N- Retirement of Daily wagers-working for worked for more than 240 days in a calander
last 11 years-retaining juniors-termination year but without notice or retrenchment
without retrenchment compensation-or one compensation, was terminated by the
month salary in lieu thereof-held-illegal-
direction of reinstatement with 50% back
employer on 01 December 1991.
wages-proper-warrant no interference by
Writ Court. 3. The petitioner in their objection/written
statement denied the allegations contenting that
Held: Para-18 the respondent/workman was engaged on
1216 INDIAN LAW REPORTS ALLAHABAD SERIES

dailywage basis for intermittent period on 7. The only question for determination
availability of work and funds. The is as to whether the Labour Court erred in
respondent never worked for more than 240 directing reinstatement of the workman
days in a year. The Labour Court held that with 50% backwages.
the workman had put in 240 days in a year,
the provisions of 6N of the U.P. Industrial 8. The Supreme Court in Deepali
Disputes Act, 1947 was not complied, Gundu Surwase Versus Kranti Junior
accordingly ordered reinstatement of the Adhyapak and others3, considered cases
respondent/workman with 50% backwages on the subject of reinstatement and culled
with continuity of service. out the propositions to be followed while
considering the cases where reinstatement
4. Contention of learned counsel for with continuity of service and back wages
the petitioner is that it is admitted that the can be ordered:
respondent/workman was a dailywager, was
engaged intermittently, accordingly the "33. The propositions which can be
Labour Court erred in awarding culled out from the aforementioned
reinstatement with 50% backwages, further judgments are:
the Irrigation Department not being an i) In cases of wrongful termination of
'industry' within the meaning of the Act, the service, reinstatement with continuity of
Labour Court would have no jurisdiction. service and back wages is the normal rule.
ii) The aforesaid rule is subject to the
5. The Labour Court upon rider that while deciding the issue of back
considering the muster roll, extracts of the wages, the adjudicating authority or the
muster roll register, the statement of Court may take into consideration the
witness (EW-1), the seniority list length of service of the
furnished by the workman concluded that employee/workman, the nature of
the workman worked for more than 240 misconduct, if any, found proved against
days. Admittedly, the provisions of the the employee/workman, the financial
Act were not followed, retrenchment condition of the employer and similar
compensation or salary in lieu of notice other factors.
was not paid to the workman, therefore, in iii) Ordinarily, an employee or
my opinion there is no perversity in the workman whose services are terminated
finding recorded by the Labour Court that and who is desirous of getting back wages
the workman was removed without is required to either plead or at least make
complying the provision of law. a statement before the adjudicating
authority or the Court of first instance that
6. This Court in State of U.P. Versus he/she was not gainfully employed or was
Presiding Officer, Industrial Tribunal (V), employed onlesser wages. If the employer
Meerut and another1, held Irrigation wants to avoid payment of full back
Department to be an industry within the wages, then it has to plead and also lead
meaning of the Act which was followed cogent evidence to prove that the
subsequently in State of U.P. State Versus employee/workman was gainfully
Labour Court, Dehradun and another2, I employed and was getting wages equal to
am, therefore not inclined to take a the wages he/she was drawing prior to the
different view. termination of service. This is so because
3 All] State of U.P. & Ors. Vs. Raj Karan & Anr. 1217

it is settled law that the burden of proof of employee/workman to get full back wages
the existence of a particular fact lies on or the employer's obligation to pay the
the person who makes a positive same. The Courts must always be kept in
averments about its existence. It is always view that in the cases of wrongful / illegal
easier to prove a positive fact than to termination of service, the wrongdoer is
prove a negative fact. Therefore, once the the employer and sufferer is the
employee shows that he was not employee/workman and there is no
employed, the onus lies on the employer justification to give premium to the
to specifically plead and prove that the employer of his wrongdoings by relieving
employee was gainfully employed and him of the burden to pay to the
was getting the same or substantially employee/workman his dues in the form
similar emoluments. of full back wages.
iv) The cases in which the Labour vi) In a number of cases, the superior
Court/Industrial Tribunal exercises power Courts have interfered with the award of
under Section 11-A of the Industrial the primary adjudicatory authority on the
Disputes Act, 1947 and finds that even premise that finalization of litigation has
though the enquiry held against the taken long time ignoring that in majority
employee/workman is consistent with the of cases the parties are not responsible for
rules of natural justice and / or certified such delays. Lack of infrastructure and
standing orders, if any, but holds that the manpower is the principal cause for delay
punishment was disproportionate to the in the disposal of cases. For this the
misconduct found proved, then it will litigants cannot be blamed or penalised. It
have the discretion not to award full back would amount to grave injustice to an
wages. However, if the Labour employee or workman if he is denied
Court/Industrial Tribunal finds that the back wages simply because there is long
employee or workman is not at all guilty lapse of time between the termination of
of any misconduct or that the employer his service and finality given to the order
had foisted a false charge, then there will of reinstatement. The Courts should bear
be ample justification for award of full in mind that in most of these cases, the
back wages. employer is in an advantageous position
v) The cases in which the competent vis-à-vis the employee or workman. He
Court or Tribunal finds that the employer can avail the services of best legal brain
has acted in gross violation of the for prolonging the agony of the sufferer,
statutory provisions and/or the principles i.e., the employee or workman, who can
of natural justice or is guilty of ill afford the luxury of spending money
victimizing the employee or workman, on a lawyer with certain amount of fame.
then the concerned Court or Tribunal will Therefore, in such cases it would be
be fully justified in directing payment of prudent to adopt the course suggested in
full back wages. In such cases, the Hindustan Tin Works Private Limited v.
superior Courts should not exercise power Employees of Hindustan Tin Works
under Article 226 or 136 of the Private Limited4.
Constitution and interfere with the award vii) The observation made in J.K.
passed by the Labour Court, etc., merely Synthetics Ltd. v. K.P. Agrawal5 (supra)
because there is a possibility of forming a that on reinstatement the
different opinion on the entitlement of the employee/workman cannot claim
1218 INDIAN LAW REPORTS ALLAHABAD SERIES

continuity of service as of right is basis and even after he is reinstated, he

contrary to the ratio of the judgments of has no right to seek regularization (See:
three Judge Benches referred to State of Karnataka Versus Umadevi (3).
hereinabove and cannot be treated as good Thus when he cannot claim regularization
law. This part of the judgment is also and he has no right to continue even as a
against the very concept of reinstatement daily wage worker, no useful purpose is
of an employee/workman." going to be served in reinstating such a
workman and he can be given monetary
9. The Supreme Court in B.S.N.L. compensation by the Court itself
Versus Bhurumal6, held that the ordinary inasmuch as if he is terminated again after
principle of grant of reinstatement with reinstatement, he would receive monetary
full back wages, when the termination is compensation only in the form of
found to be illegal is not applied retrenchment compensation and notice
mechanically in all cases. While that may pay. In such a situation, giving the relief
be a position where services of a of reinstatement, that too after a long gap,
regular/permanent workman are would not serve any purpose.
terminated illegally and/or malafide 35.We would, however, like to add a
and/or by way of victimization, unfair caveat here. There may be cases where
labour practice etc. However, when it termination of a daily wage worker is
comes to the case of termination of a daily found to be illegal on the ground it was
wage worker and where the termination is resorted to as unfair labour practice or in
found illegal because of procedural violation of the principle of last come first
defect, namely in violation of Section 25- go viz. while retrenching such a worker
F of the Industrial Disputes Act, the Court daily wage juniors to him were retained.
is consistent in taking the view in such There may also be a situation that persons
cases reinstatement with back wages is junior to him wee regularized under some
not automatic and instead the workman policy but the concerned workman
should be given monetary compensation terminated. In such circumstances, the
which will meet the ends of justice. terminated worker should not be denied
Rationale for shifting in this direction is reinstatement unless there are some other
obvious. (para 34 & 35) weighty reasons for adopting the course
of grant of compensation instead of
"34. The reasons for denying the reinstatement. In such cases,
relief of reinstatement in such cases are reinstatement should be the rule and only
obvious. It is trite law that when the in exceptional cases for the reasons stated
termination is found to be illegal because to be in writing, such a relief can be
of non-payment of retrenchment denied."
compensation and notice pay as
mandatorily required under Section 25-F 10. The Supreme Court in U.P.
of the Industrial Disputes Act, even after Power Corporation Ltd. Versus Bijli
reinstatement, it is always open to the Mazdoor Sangh7, applied the principles
management to terminate the services of of the Constitution Bench judgment in
that employee by paying him the State of Karnataka Versus Umadevi (3)8
retrenchment compensation. Since such a by observing that the question as regards
workman was working on daily wage the effect of the industrial adjudicators'
3 All] State of U.P. & Ors. Vs. Raj Karan & Anr. 1219

powers was not directly in issue in pertains to the executive. It is also true
Umadevi case. But the foundation logic in that the status of permanency cannot be
Umadevi case is based on Article 14 of granted by the Court where no such posts
the Constitution of India. Though the exist and that executive functions and
industrial adjudicator can vary the terms powers with regard to the creation of
of the contract of the employment, it posts cannot be arrogated by the courts."
cannot do something which is violative of
Article 14. If the case is one which is 13. Supreme Court in Hari Nandan
covered by the concept of regularization, Prasad Versus Food Corporation of
the same cannot be viewed differently. India10, upon considering the
Therefore, the Court held that since the aforementioned judgments as to whether
workman never worked as a pump the principles enshrined in Umadevi (3)
operator, but was engaged as daily wage case is applicable observed as follows:-
basis, who did not possess the requisite
qualification. Looked at from any angle, "34. A close scrutiny of the two
the direction for regularization, as given, cases, thus, would reveal that the law laid
could not have been given in view of what down in those cases is not contradictory
has been stated in Umadevi case. to each other. In U.P. Power Corporation,
this Court has recognized the powers of
11. Supreme Court in Maharashtra the Labour Court and at the same time
SRTC Versus Casteribe Rajya Parivahan emphasized that the Labour Court is to
Karmchari Sanghatana9, held that keep in mind that there should not be any
Umadevi does not denude the Industrial direction of regularization if this offends
and Labour Courts of their statutory the provisions of Article 14 of the
power under Section 30 read with Section Constitution, on which judgment in
32 of the MRTU and PULP Act to order Umadevi is primarily founded. On the
permanency of the workers who have other hand, in Bhonde case, the Court has
been victims of unfair labour practice on recognized the principle that having
the part of the employer under Item 6 of regard to statutory powers conferred upon
Schedule IV where the posts on which the Labour Court/Industrial Court to grant
they have been working exist. Umadevi certain reliefs to the workmen, which
cannot be held to have overridden the includes the relief of giving the status of
powers of the Industrial and Labour permanency to the contract employees,
Courts in passing appropriate order under such statutory power does not get
Section 30 of the MRTU and PULP Act, denuded by the judgment in Umadevi's
once unfair labour practice on the part of case. It is clear from the reading of this
the employer under Item 6 of Schedule IV judgment that such a power is to be
is established. exercised when the employer has
indulged in unfair labour practice by not
12. The legal position is enshrined in filling up the permanent post even when
paragraph 41 which reads as follows:- available and continuing to workers on
temporary/daily wage basis and taking the
"41. Thus, there is no doubt that same work from them and making them
creation of posts is not within the domain some purpose which were performed by
of judicial functions which obviously the regular workers but paying them much
1220 INDIAN LAW REPORTS ALLAHABAD SERIES

less wages. It is only when a particular would be violative of Art. 14 of the

practice is found to be unfair labour Constitution. Thus, the Industrial adjudicator
practice as enumerated in Schedule IV of would be achieving the equality by upholding
MRTP and PULP Act and it necessitates Art. 14, rather than violating this constitutional
giving direction under Section 30 of the provision.
said Act, that the Court would give such a
direction." 40. The aforesaid examples are only
illustrative. It would depend on the facts
14. The Court in Hari Nandan Prasad of each case as to whether order of
case (supra) observed that keeping in mind regularization is necessitated to advance
that industrial disputes are settled by justice or it has to be denied if giving of
industrial adjudicator on principles of fair such a direction infringes upon the
play and justice concluded as follows:- employer's rights"

"39. On harmonious reading of the two 15. A three-Judge Bench of the

judgments discussed in detail above, we are Supreme Court in Haryana Roadways
of the opinion that when there are posts Versus Rudhan Singh11, considered the
available, in the absence of any unfair labour question whether back wages should be
practice the Labour Court would not give awarded to the workman in each and
direction for regularization only because a every case of illegal retrenchment.
worker has continued as daily wage
worker/adhoc/temporary worker for number "8. There is no rule of thumb that in
of years. Further, if there are no posts every case where the Industrial Tribunal
available, such a direction for regularization gives a finding that the termination of service
would be impermissible. In the aforesaid was in violation of Section 25-F of the Act,
circumstances giving of direction to entire back wages should be awarded. A host
regularize such a person, only on the basis of of factors like the manner and method of
number of years put in by such a worker as selection and appointment i.e. whether after
daily wager etc. may amount to backdoor proper advertisement of the vacancy or
entry into the service which is an anathema inviting applications from the employment
to Art. 14 of the Constitution. Further, such a exchange, nature of appointment, namely,
direction would not be given when the whether ad hoc, short term, daily wage,
concerned worker does not meet the temporary or permanent in character, any
eligibility requirement of the post in question special qualification required for the job and
as per the Recruitment Rules. However, the like should be weighed and balanced in
wherever it is found that similarly situated taking a decision regarding award of back
workmen are regularized by the employer wages. One of the important factors, which
itself under some scheme or otherwise and has to be taken into consideration, is the
the workmen in question who have length of service, which the workman had
approached Industrial/Labour Court are at rendered with the employer. If the workman
par with them, direction of regularization in has rendered a considerable period of service
such cases may be legally justified, and his services are wrongfully terminated,
otherwise, non-regularization of the left over he may be awarded full or partial back wages
workers itself would amount to invidious keeping in view the fact that at his age and
discrimination qua them in such cases and the qualification possessed by him he may
3 All] Zila Panchayat Balrampur Vs. Commissioner Devi Patan Division & Anr. 1221

not be in a position to get another September 1990 regarding payment of

employment. However, where the total bonus for 1987-88. Seniority list would
length of service rendered by a workman is show that the daily wagers employed until
very small, the award of back wages for the 1989 have continued in service. Therefore,
complete period i.e. from the date of the undisputed facts that emerges is that the
termination till the date of the award, which respondent was appointed in 1980, the
our experience shows is often quite large, employer was taking regular work from the
would be wholly inappropriate. Another respondent, it is not the case of the
important factor, which requires to be taken petitioner that they did not require the
into consideration is the nature of service of dailywage employees on regular
employment. A regular service of permanent basis, persons junior to the respondent were
character cannot be compared to short or continued in service. The respondent was
intermittent daily- wage employment though removed from service unceremoniously by
it may be for 240 days in a calendar year." the employer without any valid or cogent
reason despite the workman having put in
16. The Supreme Court in Bhuvnesh eleven years of service. The conduct of the
Kumar Dwivedi Versus Hindalco Industries petitioner-employer tantamounts to unfair
Ltd.12, on the facts of that case, the Court labour practice as provided under the VIth
held that the workman was subjected to schedule to the Industrial Disputes Act, by
victimization, therefore, the award passed by employing the workmen as temporaries and
the Labour Court reinstating with backwages to continue them for such years with the
was justified. The judgment and order of the object of depriving them of the status and
High Court granting compensation was privileges of permanent workmen.
reversed.
19. In the result, the writ petition
17. Applying the law on the facts of fails and is accordingly dismissed.
the present case, the workman in the
written statement had clearly stated that he 20. No order as to costs.
was engaged in 1980 as Beldar against --------
permanent vacancy, had continuously ORIGINAL JURISDICTION
worked till 1 December 1991. Thereupon, CIVIL SIDE
DATED: LUCKNOW 26.10.2015
service was terminated by the employer
without complying the terms contemplated BEFORE
under Section 6-N of the Act. It was THE HON'BLE AMRESHWAR PRATAP SAHI, J.
further pleaded that the juniors to the THE HON'BLE ATTAU RAHMAN MASOODI, J.
respondent-workman are continuing,
despite there being work, respondent was Misc. Bench No. 7716 of 2015
removed on the directions of the higher
officials, the workman was not gainfully Zila Panchayat Balrampur ...Petitioner
Versus
employed after removal, is prepared to
Commissioner Devi Patan Division & Anr.
render any service under the petitioner ...Respondents
department.
Counsel for the Petitioner:
18. In support, petitioner filed the Mohd. Aslam Khan, Atul Kumar Singh,
seniority list, document dated 15 Ripu Daman Shahi
1222 INDIAN LAW REPORTS ALLAHABAD SERIES

Counsel for the Respondents: Chairperson, Smt. Huma Rizwan assailing the
C.S.C., Prashant Kumar order dated 23.09.2015 as well as the orders
dated 08.08.2015 and 10.08.2015 whereby the
U.P. Kshetra Panchayat and Zila Panchayat tender proceedings for the purpose of
Adhiniyam, 1961-Section 225 and 228-
execution of certain work pursuant to a
Power of District Magistrate-except
supervision upon Zila Parishad-if any
resolution passed by the Zila Panchayat have
irregularity found-can send recommendation been annulled by the District
to State Government-but can not pass any Magistrate/Collector, Balrampur on the
restrain order-upon the decision of Parishad. ground of irregularities with a further direction
to re-invite tenders as stipulated therein.
Held: Para-28 & 32
28. We are, therefore, of the opinion for
the aforesaid reasons that the District 4. The matter had been heard earlier
Magistrate / Collector could not have by us and the learned Counsel for the
exercised powers for restraining the Zila State had been called upon to file an
Panchayat from opening of the tenders appropriate affidavit relating to any
pursuant to the resolution dated further developments in the matter.
27.12.2014 nor could the said resolution
have been declared to be illegal. Thus
the same also suffers from malice in law. 5. Today an affidavit has been filed in
compliance of our earlier order dated
32. The District Magistrate also has 27.10.2015 bringing on record the order
emergency powers for urgent work as per dated 26.10.2015 whereby the impugned
Section 229 but such powers nowhere
order dated 23.09.2015 has been annulled
clothe him / her with powers of Section
228 which are exclusively with the
and withdrawan. The affidavit has been
Prescribed Authority who under the taken on record. Thus one of the main reliefs
notification is the Commissioner. claimed by the petitioner stands exhausted
with the withdrawal of the said order.
Case Law discussed:
W.P. No. 9505 (M/B) 2014; JT 1991 (3) 268;
(1991) 4 SCC 139; 2008 (26) LCD 987; 2013
6. Sri Mohd. Arif Khan, learned
(96) ALR 872 Senior Counsel for the petitioner,
however vehemently urges that
(Delivered by Hon'ble Amreshwar Pratap withdrawal of the said order does not
Sahi, J.) suffice inasmuch as the second
respondent namely Collector / District
1. Heard Sri Mohd. Arif Khan, learned Magistrate, Balrampur has malafidely
Senior Counsel for the petitioner and Smt. exercised powers by restraining the
Sangeeta Chandra, learned Additional Chief opening of tenders and as such the orders
Standing Counsel III for the State. date 08.08.2015 and 10.08.2015 staying
the tender process also deserves to be
2. Supplementary counter affidavit quashed, keeping in view the nature of the
filed on behalf of respondent no. 2, is withdrawal order dated 26.10.2015 that in
taken on record. a guarded way proposes an action to be
taken by the learned Commissioner.
3. This petition has been filed by a
democratically elected local body Zila 7. While proceeding with the matter,
Panchayat, Balrampur through its we called upon the learned Counsel to
3 All] Zila Panchayat Balrampur Vs. Commissioner Devi Patan Division & Anr. 1223

address the Court on the availability of Panchayat from the State Finance
the powers with the District Magistrate Commission through the communication
and the Prescribed Authority as dated 27.02.2015. The Zila Panchayat had
contemplated under Sections 225 and 228 already passed resolution nos. 4 and 5 on
of the U.P. Kshettra Panchayats and Zila 27.12.2014 for utilization of the grants
Panchayats Adhiniyam, 1961 to resolve that were proposed to be made available
the jurisdictional issue. It appears to the Zila Panchayat for seventy eight
realising the impact of the same, the projects. Part of the grant was utilized on
second respondent passed the withdrawal being approved after following the due
order dated 26.10.2015. process of tender and award of contracts.
For the other projects, the tenders and
8. Learned Additional Chief contracts are stated to have been approved
Standing Counsel for the respondent-State by the Chairman where after an
relied upon a Division Bench judgment in advertisement was published in two local
the case of Smt. Gajala Chaudhary vs. newspapers as well as other newspapers
State of U.P. and others rendered in Writ of repute inviting tenders / bids.
Petition No. 9505 (M/B) of 2014, on Permission was sought from the
23.09.2014 to contend that the said competent authority through proper
Division Bench judgment clearly channel namely the Chief Development
indicates the powers being available to the Officer and during this period a query was
District Magistrate and as such the made by the respondent no. 2 i.e. the
contention raised on behalf of the Collector in relation to publishing of such
petitioner does not conform to the tenders and award of contracts.
aforesaid legal proposition as laid down in
the said judgment. 12. The petitioner urges that even
before any reply could be submitted to the
9. She also submits that even query, the District Magistrate passed an
otherwise the present writ petition has order sitting in office on a second
become academic and as a matter of fact Saturday i.e. 08.08.2015, that is officially
has become infructuous with the not a working day, alleging that she had
withdrawal of the impugned order dated received some complaints that the funds
23.09.2015. are to be misutilized for award of such
contracts which have already being
10. It is on this issue that we have to executed by adopting dubious methods of
consider the rival submissions as to splitting the amount of such contracts.
whether the District Magistrate possessed She therefore imposed a restraint on the
any such power for restraining the opening of the tenders through the order
opening of tenders as has been attempted dated 08.08.2015 and 10.08.2015,
through the impugned communications appointing a three member committee to
dated 08.08.2015 and 10.08.2015 that enquire into the said allegations.
have not been withdrawn by her.
13. A three member committee was
11. The background in which the accordingly appointed to make a fact
dispute arose appears to be the availability finding inquiry with regard to the said
of a huge amount of funds for the Zila process having been adopted upon which
1224 INDIAN LAW REPORTS ALLAHABAD SERIES

the matter was inquired into and a report the tender process that was an outcome of
is said to have been submitted. It is in this the resolution dated 27.12.2014 is still
background that the Upper Mukhya surviving for challenge. The reason is that
Adhikari sent a letter dated 10.08.2015 while withdrawing the order dated
stopping the entire tender process 23.09.2015 on 26.10.2015, the District
pursuant to the impugned orders of the Magistrate / Collector has proceeded to
District Magistrate. make further recommendations to the
Commissioner of the division who is the
14. A representation was filed by the Prescribed Authority to take appropriate
Chairperson alleging that this was being action in the matter and has left the orders
done on account of an alleged political dated 08.08.2015 and 10.08.2015 intact.
rivalry and personal malice, as the
Chairperson had contested the election 17. Sri Mohd. Arif Khan, learned
against Sri Rakesh Yadav, son of a Senior Counsel submits, in our opinion
minister in the State Government Sri S.P. rightly so, that in the said background the
Yadav and, therefore, in order to impede matter does not remain merely academic
the functioning and carrying out of the on the issue involved as to whether the
execution work of the Zila Panchayat, this District Magistrate continues to have the
method was adopted and the District power to either restrain the tender process
Magistrate / Collector surrendered her or even make a recommendation to the
jurisdiction in favour of such persons so Commissioner for taking any appropriate
as to annul the aforesaid tender process. action in exercise of powers under Section
225 or Section 228 of the Act.
15. This writ petition was filed and
an interim order for holding the tenders in 18. Before we deal with this matter
custody was passed by the Division it would be appropriate to first consider
Bench that had entertained the writ the impact of the Division Bench
petition on 01.09.2015. The petition judgment in the case of Smt. Gajala
proceeded on the aforesaid allegations Chaudhary (supra), where the Court has
and affidavits were exchanged. When the proceeded to presume that the power
matter appeared before us, upon hearing, under Section 228 of the Act can be
learned Counsel and the Court were faced exercised by the District Magistrate /
with the question with regard to the Collector as well. With all due respect to
availability of the power with the District the ratio of the Division Bench judgment
Magistrate to proceed in the matter as the same is not an authority for the
indicated in our order dated 15.10.2015. It proposition involved herein as what we
is in the said light that the matter was find is that neither the comparative
heard by us and the questions so arising assessment of Section 225 and Section
were framed to be answered vide our 228 of the Act relating to the specific
order dated 27.10.2015. scope and powers of the Collector /
District Magistrate and that of the
16. It is in the aforesaid context that Prescribed Authority have been taken into
the matter now remains alive for consideration, nor the distinction of the
consideration, as the powers of the status of the two authorities have been
District Magistrate to intervene and stay noticed or discussed as they appear to
3 All] Zila Panchayat Balrampur Vs. Commissioner Devi Patan Division & Anr. 1225

have neither been pointed out nor does it decision, therefore, cannot be treated to be
appear to have been a matter of debate or a binding precedent. Sri Khan relied upon
consideration. on three judgments for the said
proposition. The first is in the case of
19. The Prescribed Authority as State of U.P. & another vs. M/s Synthetics
under Section 225 and 228 of the Act is and Chemical Ltd. & another reported in
an authority as defined under Section 2 JT 1991 (3) 268 and also reported in
(20) of the 1961 Act, the same is (1991) 4 SCC 139 and the other judgment
reproduced below:- is by the full Bench of this Court reported
in 2008 (26) LCD 987 in the case of
(20) "Prescribed Authority" means Tuples Educational Society and another
any person or authority notified by the versus State of U.P. and another. Another
State Government in the Gazettee as decision of a full Bench of this Court
prescribed authority for any purpose reported in 2013 (96) ALR 872 in the case
under this Act; of Arun Kumar Singh and others vs. State
of U.P. and others has also been placed
20. Thus the District Magistrate and before us.
the Prescribed Authority are not
interchangeable synonymous terms or a 22. Learned Counsel has invited the
substitute for each other. They enjoy attention of the Court to paragraphs 19 to
concurrent powers under Section 225 but 27 of the case reported in Arun Kumar
under Section 228 the powers to be Singh (supra) and urged that applying the
exercised are exclusively vested in the principles that have been consistently
Prescribed Authority only and not in the followed in the aforesaid decisions, the
District Magistrate. This distinction is Division Bench judgment in the case of
clearly evident from the notification dated Smt. Gajala Chaudhary (supra) is per
13.02.1963 that has been placed on record incuriam. With due and respectful
which categorically notifies the deference to the judgment in Smt. Gajala's
Prescribed Authority to be a case, we are inclined to accept the said
Commissioner who is a higher authority arguments of Sri Khan having noticed the
than the District Magistrate / Collector. provisions discussed herein above. The
This statutory notification has completely Division Bench judgment in the case of
gone unnoticed in the Division Bench Smt. Gajala Chaudhary (supra) does not
judgment of Smt. Gajala Chaudhary apply on the facts of this case as also
(supra). The question before us is as to because it completely omits to notice the
whether the judgment at all applies in this distinction between the powers of the
case on account of such an omission in Prescribed Authority and the District
the judgment viz-a-viz the aforesaid Magistrate as well as the notification
provisions. dated 13.02.1963.

21. Sri Khan, learned Senior 23. The question as to whether the
Counsel for the petitioner, submits that it District Magistrate / Collector enjoys the
would not be necessary to refer the power to restrain the opening of the
matter, as, the per incuriam rule is clearly tenders is still a hurdle. Section 225 of the
attracted and the said Division Bench 1961 Act is extracted here under:-
1226 INDIAN LAW REPORTS ALLAHABAD SERIES

225. Powers of inspections, etc. of can upon assessment after inspection of

prescribed authority or District Magistrate such matters as are mentioned therein,
over Parishad. record his opinion in writing and call
upon the Zila Panchayat to consider the
(1) The prescribed authority or the same for rectification of any such act
District Magistrate may, with the limits of which may require to be done in
its or his jurisdiction or district, as the accordance with law.
case may be -
(a) inspect, or cause to be inspected, 25. The said powers of the District
any movable property used or occupied Magistrate are supervisory in nature but at
by a Zila Panchayat or any Committee or the same time when it comes to
joint Committee thereof, or any work in interfering with any incorrect exercise of
progress under the direction of any of power by the Zila Panchayat then the
them; controlling authority is the Prescribed
(b) by order in writing call for and Authority under Section 228, which is
inspection a book or documents in the extracted hereunder:-
possession or under the control of a Zila
Panchayat or any Committee or joint "228 Powers of Prescribed authority
Committee thereof; to suspended action under the Act-
(c) by order in writing require a Zila
Panchayat, or any Committee or joint (1) The prescribed authority may,
Committee thereof to furnish such within the limits of its jurisdiction by order in
statements, accounts, reports (including writing, prohibits the execution or further
monthly reports of progress) or copies of execution of a resolution or order passed or
documents, relating to its proceedings or made under this or any other enactment by a
duties as he thinks fit to call for; and Zila Panchayat, or Committee of a Zila
(d) record in writing, for the Panchayat, or a joint committee, or servant of
consideration of Zila Panchayat, or any a Zila Panchayat or a Committee, if in its
Committee or joint Committee thereof opinion such resolution or order is patently
any observations he thinks proper in illegal or ultra vires or inconsistent with any
regard to its proceedings or duties. order or direction given by the State
(2) Every officer appointed by the Government under this Act or is of a nature
State Government in this behalf may, to cause or tend to cause obstruction,
within the limits of this jurisdiction, annoyance or injury to the public or to any
exercise, the powers conferred upon the class or body or person lawfully employed,
prescribed authority or District Magistrate or danger to human life, health or safety, or a
by sub-section (1) in respect of any matter riot or affray and may prohibit the doing or
affecting his department and may inspect continuance by any person of any act in
or cause to be inspected, the pursuance of or under cover of such
administration of a Zila Panchayat in resolution or order.
respect of such matter." (2) Where an order is made under
sub-section (1) a copy thereof, with a
24. A perusal of the said provisions statement of the reasons for making it,
clearly indicates the scope and extent of shall forthwith be forwarded by the
the powers of the District Magistrate who prescribed authority to the State
3 All] Zila Panchayat Balrampur Vs. Commissioner Devi Patan Division & Anr. 1227

Government which may, after calling for that the Commissioner was notified as the
an explanation from the Zila Panchayat Prescribed Authority by virtue of a
and considering the explanation, if any, notification.
made by it, rescind, modify or confirm the
order. 27. The said control for annulling a
(3) Where the execution or further resolution passed by the Zila Panchayat is
execution of a resolution or order is thus in terms of the aforesaid statutory
prohibited by an order made under sub- provisions where the Collector does not
section (1) and continuing in force, it shall be appear to have any role to play. If that is the
the duty of the Zila Panchayat or the position, then in that event, if the Collector /
Committee of the Zila Panchayat or the joint District Magistrate does not have the power
committee or any officer or Servant of the to exercise any such authority as envisaged
Zila Panchayat or of the Committee of the under Section 228, then the authority to pass
Zila Panchayat or of the joint committee, if an interim order is also out of question
so required by the authority making the order inasmuch as what cannot be permitted to be
under the said sub-section, to take any action done directly, cannot also be permitted to be
which it would have been entitled to take, if done indirectly. The Collector neither has the
the resolution or order had never been made power to pass final orders nor can the same
or passed, and which is necessary for be done by virtue of an interim direction.
preventing any person from doing or
continuing to do anything under cover of the 28. We are, therefore, of the opinion
resolution or order of which the further for the aforesaid reasons that the District
execution is prohibited." Magistrate / Collector could not have
exercised powers for restraining the Zila
26. Thus there is a clear distinction Panchayat from opening of the tenders
between the scope and powers of the pursuant to the resolution dated
Prescribed Authority and the District 27.12.2014 nor could the said resolution
Magistrate viz aforesaid two sections. The have been declared to be illegal. Thus the
aforesaid issue also does not appear to have same also suffers from malice in law.
been either argued or dealt with in the
Division Bench judgment in the case of Smt. 29. The third question is that can the
Gajala Chaudhary (supra). The Collector/District Magistrate be said to be
Commissioner only has the power to annul a toothless tiger even if the Zila
the action taken by the Zila Panchayat in his Panchayat transgresses the norms within
capacity as the Prescribed Auhoritiy. There is which it is entitled to function.
yet another reason for the same, namely, the
Zila Panchayat is a democratically elected 30. It is here that we may observe
local body constituted under the statute and that the power to inspect and to indicate in
the resolution passed by the Zila Panchayat is writing for the consideration of Zila
an expression of the will of the elected Panchayat under Section 225 comes into
representatives of the public large at the play. The District Magistrate / Collector,
district level. In such a situation the control therefore, in our opinion if arrives at the
over Zila Panchayat obviously was intended conclusion that the Zila Panchayat has
to be by an authority higher than the District acted deviantly he / she can always make
Magistrate / Collector and it is for this reason its recommendations to the Commissioner
1228 INDIAN LAW REPORTS ALLAHABAD SERIES

for taking an appropriate action if the Zila recommendations to the Commissioner as

Panchayat does not respond to the has now been done under the
recommendations made by the District communication dated 26.10.2015. In our
Magistrate as per the provisions of opinion it is upon the Commissioner to
Section 225 of the 1961 Act. take an independent decision if there is no
adverse material against the petitioner.
31. This in our opinion, would be a
purposive interpretation of the powers 35. We, therefore, allow this petition
available in the hands of the Collector / and we also strike down the orders dated
District Magistrate in order to supervise 08.08.2015 and 10.08.2015 passed by the
the functioning of the Zila Panchayat and Collector restraining the Zila Panchayat
make such recommendations to the Zila from opening of the tenders. This should
Panchayat that may be necessary for not be construed as the tenders being
discharge of its obligations under the approved by us and shall however be
1961 Act. subject to any action which may be taken
by the Commissioner in exercise of the
32. The District Magistrate also has powers under Section 228 of the 1961 Act
emergency powers for urgent work as per or any other provisions under the Act if
Section 229 but such powers nowhere permissible without prejudice to the rights
clothe him / her with powers of Section of the Zila Panchayat and its authorities to
228 which are exclusively with the take appropriate lawful steps in respect of
Prescribed Authority who under the the tenders. The tenders shall be forthwith
notification is the Commissioner. handed over to the Executive Officer of
the Zila Panchayat that is in the custody
33. Consequently for all the aforesaid of a Magistrate as per the orders of this
reasons, the District Magistrate / Collector on Court.
the basis of any material that may be relevant
for consideration of Commissioner for 36. The writ petition is allowed.
exercise powers under Section 228 can make --------
such recommendations for an independent ORIGINAL JURISDICTION
CIVIL SIDE
assessment . This can also be preceded by a
DATED: ALLAHABAD 01.09.2015
preliminary fact finding enquiry.
BEFORE
34. Sri Khan, learned counsel THE HON'BLE SUNEET KUMAR, J.
contends that in the instant case, this is
the second round of harassing the Writ-A No. 8068 of 2011
petitioner as in the previous year the Zila
Panchayat had been harassed in a same Sunil Kumar Gupta ...Petitioner
Versus
fashion and the repeated action is State of U.P. & Ors. ...Respondents
malafide. He further submits that so far as
setting up of a three member committee is Counsel for the Petitioner:
concerned by the Collector even that Vatsal Srivastava, Ashok Khare, V.
committee has not adversely reported Srivastava
against the petitioner. Thus there was no
material for the Collector to make any Counsel for the Respondents:
3 All] Sunil Kumar Gupta Vs. State of U.P. & Ors. 1229

C.S.C., H.N. Singh, Somveer Singh Regional Employment Officer, Agra

Region, Agra was competent to
Constitution of India, Art.-311(1)- remove/dismiss the petitioner, holding the
Dismissal of Senior Assistant-working in post of Senior Assistant in the office of
district employment office Mathura-
appointed and promoted by Director-being
the District Employment Office, Mathura,
appointing authority under Rule 3(a) of being an authority subordinate to that by
U.P. Training and employment ministerial which the petitioner was appointed.
service Rules 1981-whether the Regional
employment officer empowered to pass 2. The service condition of the
impugned dismissal?-held-'No' reasons
petitioner is governed under U.P. Training
discussed.
and Employment Ministerial Service
Held: Para-29 Rules 19811.
The clarification so furnished is in sync with
the position of law as noted herein above. 3. The facts of the case, briefly is, that
Hence, the stand taken by the respondents the petitioner was appointed Lower Division
that the Regional Employment Officer is the
person who appointed the petitioner on
Clerk2 in the office of Government Industrial
promotion is not borne out from the material Training Institute (G.I.T.I.), Mathura,
brought on record, rather the record would subsequently, was promoted to the post of
reflect that appointment and promotion Senior Assistant on 06 December 2006 by
could have been made at the Directorate the second respondent, Director, Training
level alone, as the circular noted and Employment, Lucknow3. The petitioner
hereinabove, would provide. The
respondents in practice have followed the
while working at Mathura, was placed under
circular for a prolonged period without suspension on 06 August 2009, charge
amending the statutory Rules 1981. Even sheeted on 04 November 2009 containing
taking a case, otherwise, the order of eight charges issued by the Enquiry Officer,
promotion was admittedly passed and issued Regional Employment Officer, Jhansi, which
by the Director who being an higher officer was countersigned by the third respondent,
than the appointing authority Regional
Employment Officer, the impugned order of
Regional Employment Officer, Agra
removal could not have been passed by the Division, Agra in the capacity of appointing
Regional Employment Officer nor it could authority/disciplinary authority. Upon
have been cured in appeal by the Director. conclusion of the enquiry, the third
respondent, Regional Employment Officer,
Case Law discussed: Agra Division, Regional Employment
AIR 1964 SC 449; AIR 1957 All 439; AIR 1949 PC
112; AIR 1955 SC 70 (73); AIR 1970 SC 679;
Office, Agra by the impugned order dated 24
AIR 1982 SC 1407; AIR 1957 MP 126 (128); AIR July 2010 imposed major penalty of
1962 Raj. 258; (1969) 2 SCC 108; AIR 1970 SC dismissal upon the petitioner.
1255 (1262); AIR 1967 SC 459 (462); (2003) 4
SCC 753, 757 (para-8); AIR 1977 SC 747 (para 4. Aggrieved, petitioner preferred an
13); AIR 1977 SC 1233 (paras 10, 13); (2006) 12
appeal before the second respondent,
SCC 373, 375 (para 7); AIR 1982 SC 1394 (para
4); AIR 1977 SC 747 (paras 14-15). Director, which was rejected on 13
December 2010. The petitioner is
(Delivered by Hon'ble Suneet Kumar, J.) assailing the aforementioned orders solely
on the ground that the third respondent,
1. The triable question raised by the Regional Employment Officer, Agra is
contesting parties is as to whether the not the appointing authority, the second
1230 INDIAN LAW REPORTS ALLAHABAD SERIES

respondent, Director being the appointing 8. It is admitted between the parties

authority, could have removed the that the petitioner is an officer of the Field
petitioner, therefore, the order of dismissal Staff and not of the Directorate. As to
is void ab initio. who is the appointing authority of the
petitioner, the Rules 1981 governing the
5. The contention of Sri Ashok Khare, petitioner needs to be examined. Sub-
learned Senior counsel appearing for the clause (a) of Rule 3 defines 'appointing
petitioner is that the entire enquiry stands authority' which means an authority
vitiated as the disciplinary proceedings were mentioned in Appendix 'A' to the Rules.
initiated by an officer subordinate to that of The 'Directorate' means the head quarters
the appointing authority/disciplinary office of the Director. Sub-clause (f) of
authority. The petitioner admittedly was Rule 3 defines 'Field Staff' which means
promoted on the post of Senior Assistant by the ministerial staff, other than the
the Director. Pursuant thereof, petitioner was headquarter staff, working in the field
posted at District Employment Office. The offices; sub-clause (g) defines 'Field
suspension order, the charge sheet and the Office'; which means an office other than
impugned dismissal order which was passed the Directorate but functioning under the
by the third respondent, Regional administrative control of the Director.
Employment Officer, who being subordinate Sub-clause (j) defines 'Headquarters Staff'
in rank and status to that of the Director which means the ministerial staff of the
could not have removed the petitioner. Directorate.

6. In rebuttal, Sri H.N. Singh, 9. Part III of the Rules 1981 provide
learned senior counsel appearing for fifth for 'Recruitment', Rule 5 specifies the
respondent, Regional Employment source of recruitment. The staff under
Officer, Agra Division, Agra and the Rule 5 are divided in two heads: (i)
learned Standing Counsel appearing for Headquarter Staff and (ii) Field Staff.
the State respondents would submit that Sub-clause (xi) under 'headquarter staff'
the petitioner was promoted on the post of refers to Senior Assistant and other
Upper Division Clerk4 which was equivalent posts/position and provides
subsequently redesignated Senior their source of recruitment. Sub-clause
Assistant under the Rules 1981. The (xi) reads as follows:-
appointing authority of Upper Division
Clerk under the Rules 1981 is the "Senior Assistant/Noter and
Regional Employment Officer, the Drafter/Assistant Accountant/Upper
petitioner being an officer under Field Division clerk/Inspector of Accounts
Staff and not an officer of the Directorate, Stock Verifier-By promotion from
the Regional Employment Officer was the amongst permanent Compilation
competent authority, therefore, would Assistants, Junior Noter and Drafters,
urge there is no illegality or infirmity in Record Keepers and Accounts Clerk:"
the impugned order. The order is intra
vires of Article 311. 10. Under the 'Field Staff', Sub-
clause (viii) provides the source of
7. Rival submissions fall for recruitment for Head clerk/ UDC, which
consideration. is extracted:-
3 All] Sunil Kumar Gupta Vs. State of U.P. & Ors. 1231

(viii) Accountant/Accountant-cum- Sri H.N. Singh, Senior Counsel would

Cashier/ Head Clerk/Upper Division submit that the petitioner being a LDC
Clerk/Store Keeper (Regional under the Field Staff, was promoted to the
Employment Exchange of Kanpur).- By post of UDC which subsequently was
promotion from amongst permanent designated Senior Assistant, therefore, the
Lower Division Clerks/ Guides/Typists/ appointing authority of the Senior
Career Room Guides." Assistant/UDC at the Head Quarter is the
Director/Joint Director, whereas, the
11. The petitioner admittedly being appointing authority of UDC for Field
a field staff and not a headquarter staff, Staff being the Regional Employment
was promoted from the post of LDC to Officer, hence, would urge there is no
the post of Senior Assistant as is reflected illegality or infirmity in the impugned
from the promotion order passed by the order.
Director. The Rules 1981 referred
hereinabove, would reveal that under the 14. The principle enshrined in Sub-
head of Field Staff, there is no post of clause (1) of Article 311 is that no person
Senior Assistant. LDC gets promoted to who is a member of the civil service or
the post of UDC/Head Clerk. In Appendix holds a civil post under the Union or State
'A' to the Rules 1981, the appointing shall be dismissed or removed by any
authority for the post of Senior authority subordinate to that by which he
Assistant/UDC under 'Headquarter Staff' was appointed. The parties do not dispute
is the Director, whereas, Head Clerk/UDC that the petitioner is holding a civil post.
under the Field Staff, the appointing
authority is the Regional Employment 15. The clause applies only if the
Officer/Principal. There is no post of following conditions are satisfied.
Senior Assistant under the Field Staff.
The pay scales of both the post, Senior "(a) That the person whose services
Assistant under the Headquarter staff and are terminated is a member of a civil
Head Clerk/UDC under the Field Staff are service or holds a civil post.
different. The pay scale of Senior (b) That such termination amounts to
Assistant is higher as compared to that of 'dismissal' or 'removal5. Thus, Clause (1)
the UDC working under the Field Staff, need not be complied with where a person
probably, therefore, the appointing is discharged in terms of conditions of his
authority are different officers. contract of service6. Similarly, where the
penalty awarded is other than dismissal or
12. Learned counsel for the parties removal, e.g., reduction in rank, or
would not dispute that subsequently the suspension, it may be awarded by an
pay scale of the Senior Assistant and authority who is empowered in that behalf
UDC were brought at par, at the time of by the Rules even though he is not the
promotion the pay scales were equal but 'appointing authority'."
the appointing authority continued to be
distinct. 16. A dismissal by an officer
subordinate to the appointing authority is
13. In view of the position as null and void. The defect goes to the root
emerges upon examining the Rule 1981, of the order of dismissal and is not cured
1232 INDIAN LAW REPORTS ALLAHABAD SERIES

even if that order is confirmed on appeal 21. If the dismissing authority is not
by the 'appointing authority' or some other subordinate in rank to the appointing
superior authority7. authority, any difference in designation is
not material14. Thus in order to ascertain
17. On the other hand, this clause who was the 'appointing authority' for the
does not require that the dismissal or purposes of application of Art. 311(1), the
removal must be ordered by the very same formal document on the basis of which
authority who made the appointment or by the civil servant holds his appointment
his direct superior. There is a compliance must be looked into.
with the clause if the dismissing authority is
not lower in rank or grade than the 22. Hence, when a person is, in fact,
appointing authority8. It follows that appointed by an authority superior to the
dismissal by an authority superior to the authority who is entitled, under the
appointing authority is not bad. Departmental Rules, to appoint that
person, he can be dismissed only by that
18. The dismissal is not invalid authority who had, in fact, ordered that
where the order of dismissal is passed by appointment and not the authority
the appointing authority but the order is empowered by the Rules. Where a person
merely communicated by some is confirmed in a higher post in which he
subordinate officer. was officiating it is the officer who issues
the order of confirmation who becomes
19. It is for the Government servant his 'appointing, authority' and not the
to plead and prove who was his higher officer who may have selected him
'appointing authority' and also that the for such confirmation.15
dismissing authority is lower in rank than
the appointing authority9. 'Subordinate' 23. Where the power to appoint is
refers to subordinate in rank10 and not in vested by a statutory provision in one
respect of function11. authority, to be exercised on the advice of
another, it is the former who is to be
20. Therefore, where the order of regarded as the 'appointing authority'.16
dismissal is made by an authority Recommending/approving authority does
subordinate to the appointing authority, not thereby become the appointing
the unconstitutionality is not cured by the authority.17
fact that the order of dismissal is
confirmed, on appeal by the proper 24. Where the conditions of service
authority. On the same principle, the were kept intact by the States
appointing authority cannot delegate his Reorganisation Act, 1956, an employee,
power of dismissal of removal to a who was appointed prior to such
subordinate, so as to destroy the reorganisation, cannot be dismissed, after
protection afforded by the Constitution, reorganisation, by any authority lower
unless the Constitution itself authorises than the authority who had appointed him,
such delegation by other provisions12. It or an authority equivalent to or co-
is not possible for the proper authority to ordinate in rank with the appointing
validate an order made without authority. Thus, where the employee was
jurisdiction, with retrospective effect.13 appointed by the then Head of the
3 All] Sunil Kumar Gupta Vs. State of U.P. & Ors. 1233

Department, he cannot be dismissed by therefore, the appointing authority of the

anybody subordinate to the corresponding petitioner for the purpose of Article 311
Head of the Department, after would be the Director, who vide letter dated
reorganisation;18 nor can a person 6 October 2011 sought an explanation from
appointed by the Rajpramukh be the Regional Employment Officer that under
dismissed by a Financial Commissioner what circumstances he had passed the order
(who is subordinate to the Governor), of dismissal when admittedly the promotion
except with the previous approval of the was issued by the Director. But the second
Central Government.19 respondent, Director, while deciding the
appeal of the petitioner accepted the view
25. The departmental proceeding taken by the Regional Employment Officer
can be initiated by a person lower in rank that under Rules 1981 it is the Regional
than the appointing authority but the final Employment Officer who is the appointing
order can be passed only by the authority of the UDC and placing reliance on
appointing authority or an authority the Government Order dated 19 February
higher than it.20 1988 rejected the plea of the petitioner. The
Government Order dated 19 February 1988
26. The onus of producing all (at Annexure 46) of the record was dealing
relevant papers to show that the with a situation, where a superior authority
dismissing authority was lower in rank made the appointment/promotion,
than the appointing authority is upon the subsequently the confirmation order was
petitioner.21 passed by the appointing authority who is
lower in rank, the question that arose for
27. Dismissal order passed by a clarification was as to who is the competent
subordinate is void ab initio.22 Hence, the authority to exercise power under Article
fact that such order was subsequently 311(1). The Government Order clarified that
confirmed in appeal by the Head of the it would be the officer who appointed the
Department will not cure the initial Government servant though he may not be
defect.23 the designated appointing authority under the
Rules.
28. Having considered the legal
position and binding precedent, applying it 29. The clarification so furnished is in
to the facts of the case. The record would sync with the position of law as noted herein
reveal that in reply sought under the Right above. Hence, the stand taken by the
to Information Act dated 06 January 2011, respondents that the Regional Employment
respondent informed that the petitioner was Officer is the person who appointed the
promoted as Senior Assistant, the petitioner on promotion is not borne out from
designation of the post came on the the material brought on record, rather the
recommendation of the Fourth Pay record would reflect that appointment and
Commission in 1986, petitioner was promotion could have been made at the
promoted by the Director. The information Directorate level alone, as the circular noted
so furnished is also reflected from the other hereinabove, would provide. The
material brought on record. Promotion is a respondents in practice have followed the
mode of appointment. The order of circular for a prolonged period without
promotion was issued by the Director, amending the statutory Rules 1981. Even
1234 INDIAN LAW REPORTS ALLAHABAD SERIES

taking a case, otherwise, the order of order passed by the Regional Employment
promotion was admittedly passed and issued Officer.
by the Director who being an higher officer
than the appointing authority Regional 31. The counter affidavits filed by
Employment Officer, the impugned order of the respondents are prima facie false
removal could not have been passed by the affidavits, the averments made therein do
Regional Employment Officer nor it could not correspond to the circulars/letters
have been cured in appeal by the Director. issued by the Director.

30. Therefore, the appellate authority 32. For the reasons and law stated
while passing the impugned order dated 24 herein above, the writ petition succeeds and
July 2010 misread the Government Order is accordingly allowed. The impugned
dated 19 February 1988, further the orders dated 24 July 2010 passed by the
Directorate by Circular dated 31 August third respondent, Regional Employment
1989 addressed to all the Regional Officer, Agra Division, Agra and order
Employment Officer/District Officer dated 13 December 2010 passed by the
clarified that upon enforcement of the new second respondent, Director, Training and
staff proposed promotion, absorption and Employment, Lucknow, respectively are
appointment of all senior clerks would, quashed. The petitioner shall be entitled to
henceforth be made at the Directorate level. all consequential benefits including lost
The circular in irrevocable terms would wages from the due date.
provide that promotion from the LDC to
Senior Assistant shall not be made at the 33. I would like to record my
Regional level, in the eventuality of any appreciation for Sri Aishwarya Krishna,
such promotion being made it shall be Law Clerk for research work undertaken
treated to be void, consequently the by him in the assistance of this case.
employee shall not receive any benefit
pursuant to such promotion. It is relevant to 34. The cost of litigation assessed at
note that the initiation for promotion to the Rs. 50,000/-, to be paid to the petitioner by
post of Senior Assistant was undertaken by the second respondent, Director, Training
the Directorate vide letter dated 02 and Employment, Lucknow within six
November 2006, the name of the petitioner weeks.
finds place at Serial No. 8. Petitioner in --------
appeal before the second respondent, ORIGINAL JURISDICTION
Director, raised the issue that the Regional CIVIL SIDE
Employment Officer was not competent to DATED: LUCKNOW 08.10.2015
have initiated disciplinary proceedings or
BEFORE
removed him from service. The relevant
THE HON'BLE DINESH MAHESHWARI, J.
documents were placed before the Director THE HON'BLE RAKESH SRIVASTAVA, J.
who inspite of being aware that the
Regional Employment Officer was not Misc. Bench No. 9441 of 2015
competent to initiate or promote an officer
to the post of Senior Assistant/UDC Asok Pande [PIL] ...Petitioner
deliberately had taken recourse to the Versus
unamended Rules 1981 to justify the illegal Union of India & Ors. ..Respondents
3 All] Asok Pande [PIL] Vs. Union of India & Ors. 1235

Counsel for the Petitioner: 2. The petitioner would submit in

Asok Pande (In person) paragraph no. 4 of the petition that he is
bringing the following substantial
Counsel for the Respondents: question of law for consideration of this
C.S.C., A.S.G., U.N. Mishra Court :
Bar Council of India, Rules 1975-Chapter I "Whether a senior advocate can
Part VI-Advocates Act 1961-Section 16-
Restriction on appearance pleading,
function as a state law officer or the law
consolidation with clients directory-without officer of the Union of India by whatever
assistance of roll advocate-as such a senior name/designation their called?" (sic.)
advocate can not be appointed as Solicitor
General of India or Advocate General-held- 3. The petitioner has submitted in this
misconceived-in absence of specific petition that Section 16 of the Advocates
prohibition-can not be disturbed from
functioning.
Act, 1961 ('the Act of 1961') provides for
two classes of Advocates i.e., Senior
Held: Para-14 Advocate and other Advocates; and the
This being the position of a Senior Advocate, Supreme Court and the High Courts are
in our view, the Union Government and the authorized to designate the Senior Advocates
State Government are clearly entitled to with their consent and to frame the rules in
consider and offer them appointment as Law
Officers so as to ensure effective
that regard. The petitioner has further
representation before the Courts. The referred to Sections 16 (3) and 49 (1) (g) of
suggestions as made by the petitioner, if the Act of 1961 authorising the Bar Council
accepted, would lead to an entirely of India to frame the rules governing the
unacceptable position that the State Advocates as well as Senior Advocates and
Government and the Union Government can then, has referred to the Bar Council of India
never take the services of the Advocates of
eminence for their purposes once they get
Rules, 1975, particularly Chapter 1 of Part-
designated as Senior Advocates. The VI thereof, laying down restrictions on
suggestions, as made by the petitioner, are Senior Advocates. With reference to these
required to be and are rejected. Rules of the Bar Council of India, the
contention of the petitioner is that when a
(Delivered by Hon'ble Dinesh Maheshwari, J.) Senior Advocate cannot appear directly,
cannot accept instructions to draft pleading
1. By way of this petition, framed and or affidavits, cannot give advice on evidence,
styled as Public InterestLitigation, the cannot do any drafting work of analogous
petitioner, a practicing Advocate in this Court, kind, cannot be approached by a client
hasattempted to raise the question as to directly and cannot be briefed or instructed
whether a designated SeniorAdvocate could by the client to appear directly in the Court,
function as a Law Officer of the Union or of and is to pay reasonable fee to his assisting
the State. Besides the others, the petitioner has counsel, he cannot function as a Law Officer
arrayed the present AttorneyGeneral for India of the State because these restrictions cannot
as respondent no. 3; the present Solicitor be adhered to by the Senior Advocate, if
General ofIndia as respondent no. 4; and appointed by the Government. With
present Advocate General and two Additional reference to the above Rules and particularly
Advocate Generals for the State of Uttar clauses (b) (i), (c), (d) and (f) thereof, the
Pradesh as respondent nos. 5 to 7 respectively. petitioner would argue that in view of such
1236 INDIAN LAW REPORTS ALLAHABAD SERIES

specific prohibitions against drafting, respondent no. 3 to 7 after summoning the

advising and accepting briefs directly, a same from the concerned respondents.
Senior Advocate cannot function as a Law
Officer of the State; and he cannot function c) Issue any other writ, order or
as Attorney-General, Advocate-General or direction which this Hon'ble Court deem
Additional Advocate-General. It is further fit, proper and reasonable regarding this
submitted that when a Senior Advocate matter."
cannot appear without an Advocate on
Record in the Supreme Court or without an 4. On taking up this matter and
Advocate in Part II of the State Roll in any having gone through the record, we have
Court or Tribunal, appointment of a Senior posed a query to the petitioner appearing in
Advocate as Advocate-General or Additional person as to the specific prohibition
Advocate-General entails extra liability on whereby and wherefor a Senior Advocate
the State to engage an assisting counsel who cannot hold the office of the Attorney
is to be paid fees by the Senior Advocate as General, the Advocate General or any
required by clause (f) of the Rules aforesaid. other office so as to represent the
The petitioner has also referred to the names Government concerned before the Court?
of two Advocates, who were earlier holding In response, the petitioner frankly
the office of Chief Standing Counsel, but submitted that such a prohibition is not
they resigned after being designated as stated in specific words in the concerned
Senior Advocate. The petitioner has Rules but contended that a conjoint reading
submitted that the question of appearance of of various clauses appearing in Chapter 1
one of the Senior Advocates as Additional of Part-VI of Bar Council of India Rules
Advocate General in the Court on behalf of leads to the deduction that a Senior
the State was raised in Writ Petition No. Advocate cannot be a Law Officer of the
4618 (M/B) of 2015 and as he was asked to State. The petitioner has submitted that
file a proper application, hence is filing the only for the want of specific words of
present petition. The petitioner has prayed for prohibition that this writ petition is
the following reliefs : necessitated and by appropriate
interpretation, the deduction would be that
a) To issue a writ of mandamus the Senior Advocate cannot be appointed
directing the respondent no. 1 Union of India as Law Officer of the State. The petitioner
to remove the respondent no. 3 and 4 from has also referred to certain privileges and
the office of attorney General for India and facilities as extended and allowances as
Solicitor General of India respectively and to paid to the Law Officers of the State.
direct the respondent no. 2 State of Uttar According to the petitioner, in the present
Pradesh to remove the respondent no. 5,6 set up of Rules, the Senior Advocate
and 7 from the post of Advocate General and designated by the Court cannot function as
Additional Advocate Generals as being a Law Officer of the State and, therefore,
senior advocate, these persons cannot this writ petition deserves consideration.
function as law officer of the Union or the
State. 5. Having given thoughtful
consideration to the submissions made
b) To issue a writ of certiorari for and having examined the record, we are
quashing the appointment of the not persuaded to entertain this petition.
3 All] Asok Pande [PIL] Vs. Union of India & Ors. 1237

6. Article 76 of the Constitution of conferred on him by or under this

India provides for an Attorney General of Constitution or any other law for the time
India in the following terms: being in force.
(3) The Advocate-General shall hold
"76. Attorney-Geneal for India.-(1) office during the pleasure of the
The President shall appoint a person who Governor, and shall receive such
is qualified to be appointed a Judge of the remuneration as the Governor may
Supreme Court to be Attorney-General determine."
for India.
(2) It shall be the duty of the 8. The relevant part of Section 16 of
Attorney-General to giveadvice to the the Act of 1961 providing for Senior and
Government of India upon such legal other Advocates could also be taken note
maters, and to perform such other duties of as under:-
of a legal character, as may from time to
time be referred or assigned to him by the "16. Senior and other advocates .—
President, and to discharge the functions (1) There shall be two classes of
conferred on him by or under this advocates, namely, senior advocates and
Constitution or any other law for the time other advocates.
being in force. (2) An advocate may, with his
(3) In the performance of his duties consent, be designated as senior advocate
the Attorney-General shall have right of if the Supreme Court or a High Court is
audience in all courts in the territory of of opinion that by virtue of his ability
India. standing at the Bar or special knowledge
(4) The Attorney-General shall hold or experience in law he is deserving of
office during the pleasure of the such distinction.
President, and shall receive such
remuneration as the President may (3) Senior advocates shall, in the
determine." matter of their practice, be subject to such
restrictions as the Bar Council of India
7. Article 165 of the Constitution of may, in the interest of the legal
India provides for Advocate General for profession, prescribe.
the State in the following terms : --- --- ---- --- "

"165. Advocate-General for the 9. Bar Council of India Rules as

State. -(1) The Governor of each State referred by the petitioner read as under :
shall appoint a person who is qualified to
be appointed a Judge of a High Court to "Senior Advocates shall, in the
be Advocate-General for the State. matter of their practice of the profession
(2) It shall be the duty of the of law mentioned in Section 30 of the Act,
Advocate-General to give advice to the be subject to the following restrictions:
Government of the State upon such legal (a) A Senior Advocate shall not file a
matters, and to perform such other duties vakalatnama or act in any Court, or
of a legal character, as may from time to Tribunal, or before any person or other
time be referred or assigned to him by the authority mentioned in Section 30 of the
Governor, and to discharge the functions Act.
1238 INDIAN LAW REPORTS ALLAHABAD SERIES

Explanation : "To act" means to file (cc)A Senior Advocate shall,

an appearance or any pleading or however, be free to make concessions or
application in any court or Tribunal or give undertaking in the course of
before any person or other authority arguments on behalf of his clients on
mentioned in Section 30 of the Act, or to instructions from the junior advocate.
do any act other than pleading required (d) He shall not accept directly from
or authorised by law to be done by a a client any brief or instructions to
party in such Court or Tribunal or before appear in any Court or Tribunal or before
any person or other authorities mentioned any person or other authorities in India.
in the said Section either in person or by (e) A Senior Advocate who had acted
his recognised agent or by an advocate or as an Advocate (Junior) in a case, shall
an attorney on his behalf. not after he has been designated as a
(b)(i) A Senior Advocate shall not Senior Advocate advise on grounds of
appear without an Advocate on Record in appeal in a Court of Appeal or in the
the Supreme Court or without an Supreme Court, except with an Advocate
Advocate in Part II of the State Roll in as aforesaid.
any court or Tribunal or before any (f) A Senior Advocate may in
person or other authorities mentioned in recognition of the services rendered by an
Section 30 of the Act. Advocate in Part-II of the State Roll
(ii) Where a Senior Advocate has appearing in any matter pay him a fee
been engaged prior to the coming into which he considers reasonable."
force of the rules in this Chapter, he shall
not continue thereafter unless an 10. It is not in dispute that so far this
advocate in Part II of the State Roll is Court is concerned, the Senior Advocates
engaged along with him. Provided that a are designated under the Rules framed
Senior Advocate may continue to appear under Designation of Senior Advocate
without an advocate in Part II of the Sate Rules, 1999 which provide, inter alia, that
Roll in cases in which he had been briefed a Senior Advocate shall be subject to such
to appear for the prosecution or the restriction as the High Court or Bar
defence in a criminal case, if he was so Council of India or the Bar Council of
briefed before he is designated as a senior State may prescribe. It has not been stated
advocate or before coming into operation that the High Court or the Bar Council of
of the rules in this Chapter as the case the State has placed any such prohibition
may be. on any Senior Advocate against his
(c) He shall not accept instructions accepting engagement as a Law Officer of
to draft pleading or affidavits, advice on the State or the Union.
evidence or to do any drafting work of an
analogous kind in any Court or Tribunal 11. We are unable to accept the
or before any person or other authorities interpretation, as sought to be put and
mentioned in Section 30 of the Act or deduction as sought to be drawn by the
undertake conveyancing work of any kind petitioner on the Rules aforesaid. True it
whatsoever. This restriction however is that a Senior Advocate cannot appear in
shall not extend to settling any such the Court without an assisting counsel as
matter as aforesaid in consultation with per the requirement of the Rules but that
an advocate in Part II of the State Roll. by itself cannot be considered prohibitive
3 All] Asok Pande [PIL] Vs. Union of India & Ors. 1239

on the Union or the State against instructions to appear in a Court on behalf

appointing a Senior Advocate as its Law of client could prohibit a Senior Advocate
Officer. As to how the appearance of such from taking any instructions whatsoever
a Senior Advocate as Law Officer of the from the client.
Union or State in the Court is to be
ensured is again a matter for consideration 14. We need not to dilate much
of the Government and Advocate further for the simple reason that under the
concerned but it is too far-stretched to Rules aforesaid, no such prohibition of
suggest that the Senior Advocate cannot accepting engagement by the Senior
be a Law Officer of the State. Advocate as a Law Officer of the State is
seen. It is noteworthy that under Section 16
12. So far the restrictions in clause of the Act of 1961, an Advocate with his
(c) aforesaid are concerned, it is but clear consent is designated as a Senior Advocate
that the restrictions are put on Senior only when the Supreme Court or the High
Advocate that he would not accept Court is of the opinion that by virtue of his
instructions to draft pleadings or ability, standing at Bar, or special
affidavits and he cannot do any drafting knowledge or experience in the law he is
work of analogous kind in any Court or deserving of such distinction. In the Rules
Tribunal or authorities mentioned in of 1999, as framed by this Court, the
Section 30 of the Advocates Act or standing at Bar has been defined as the
conveyancing work of any kind position of eminence attained by an
whatsoever. The Senior Advocate, Advocate at Bar by virtue of his seniority,
however, is still entitled to settle any legal acumen and high ethical standards
matter in consultation with an Advocate maintained by him both inside and outside
in Part II of the State Roll. Senior the Court. It is, thus, clear that an Advocate
Advocate is not to advice on evidence but gets designation as Senior Advocate by the
it is difficult to accept that the Senior Court in recognition of his ability, acumen
Advocate is otherwise prohibited from and standard. This being the position of a
giving the necessary advice on legal Senior Advocate, in our view, the Union
matters. So far the pleadings are Government and the State Government are
concerned, it is for the Union or the State clearly entitled to consider and offer them
to arrange its affairs as to the manner in appointment as Law Officers so as to ensure
which the pleadings are drafted and effective representation before the Courts.
placed in the Court; and, even in that The suggestions as made by the petitioner,
regard, a Senior Advocate is entitled to if accepted, would lead to an entirely
settle the pleadings. unacceptable position that the State
Government and the Union Government
13. So far clause (d) is concerned, can never take the services of the Advocates
the Senior Advocate has been put under of eminence for their purposes once they get
restriction against accepting directly any designated as Senior Advocates. The
brief or instructions to appear in any suggestions, as made by the petitioner, are
Court or Tribunal or before any person or required to be and are rejected.
authority. However, it is again too far-
stretched to suggest that the prohibition 15. So far the suggestion of any
against accepting directly any brief or particular resignation by any particular
1240 INDIAN LAW REPORTS ALLAHABAD SERIES

Advocate or any particular officer from any direction can be issued under Art.-227-
office is concerned, that by itself cannot be before Single Judge-petition consigned
to record-with liberty to invoke
considered binding on any other Senior
appropriate jurisdiction.
Advocate or the Government. The
privileges and concessions, as given to the Held: Para-6
Law Officers by virtue of their office This being the position and the manner in
concerned, is again a matter between the which the State Commission is to function,
Government and Law Officer and that we are clearly of the opinion that if a
hardly correlates with the issue sought to be direction is required to be given for
expeditious disposal of an appeal then the
raised in this petition. Such submissions State Consumer Dispute Redressal
seem to be entirely irrelevant. Commission would also fall within the
superintendence of the High Court under
16. In view of the above, the petition Article 227 of the Constitution of India.
fails and stands dismissed. Consequently, a writ petition ought to be
filed under Article 227 of the Constitution
of India, which shall obviously be
17. The petitioner has prayed for entertainable by a learned Single Judge.
certificate under Article 132 of the
Constitution of India. (Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)
18. The prayer stands rejected.
-------- 1. Heard learned counsel for the
ORIGINAL JURISDICTION
petitioner.
CIVIL SIDE
DATED: LUCKNOW 26.10.2015
2. The petitioner prays for a
BEFORE mandamus for an early disposal of the
THE HON'BLE AMRESHWAR PRATAP SAHI, J. appeal filed before the State Consumer
THE HON'BLE ATTAU RAHMAN MASOODI, J. Forum. The petitioner has relied on a
Division Bench order in Writ Petition No.
Misc. Bench No. 9835 of 2015 511 (MB) of 2014: Bala Devi versus The
State Consumer Dispute Redressal
Prem Singh ...Petitioner
Commission, U.P. and others. dated
Versus
The State Consumer Dispute Redressal 22.1.2014 to contend that such a direction
Commission Lko & Ors. ...Respondents for expeditious disposal of the appeal can be
issued by this Court.
Counsel for the Petitioner:
Lalji Prasad Shukla 3. The status of a District Consumer
Forum and a State Consumer Dispute
Counsel for the Respondents: Redressal Commission which is hearing
---- an appeal is to be gathered from the
nature of the composition of such forum
Constitution of India, Art.-226-Petition- and the jurisdiction exercised by it. The
seeking direction for expeditious
District Consumer Forum is chaired by a
disposal of Appeal-argument under
section 13(4) and (A) District Consumer person who has held the rank of a District
Forum-shall be deemed to Civil court- Judge, whereas the State Consumer
direction can be issued-held-such Dispute Redressal Commission is chaired
3 All] Prem Singh Vs. The State Consumer Dispute Redressal Commission Lko & Ors. 1241

by a person who has held the office of for expeditious disposal of an appeal then
Judge of a High Court. It is thus, clear that the State Consumer Dispute Redressal
these forums are chaired by the persons Commission would also fall within the
having occupied judicial offices. The superintendence of the High Court under
Consumer Protection Act in sub-sections Article 227 of the Constitution of India.
(4) to sub-section (7) of Section 13 clearly Consequently, a writ petition ought to be
provides that the District Consumer Forum filed under Article 227 of the Constitution
shall be deemed to be a civil court for the of India, which shall obviously be
purpose of Section 195, and Chapter XXVI entertainable by a learned Single Judge.
of the Code of Criminal Procedure, 1973.
The provisions of Code of the Civil 7. The writ petition, therefore, is
Procedure, to the extent indicated therein, consigned to records with liberty to the
have been made applicable. petitioner to invoke the appropriate
jurisdiction of this Court for redressal of
4. An appeal is preferred against any any such grievance.
order passed by the District Consumer --------
Forum to the State Commission. The ORIGINAL JURISDICTION
State Commission has jurisdiction, CIVIL SIDE
DATED: ALLAHABAD 21.09.2015
powers and authority which are to be
exercised by the Benches as constituted BEFORE
under Section 16. The jurisdiction under THE HON'BLE V.K. SHUKLA, J.
Section 17 is against appeals as also THE HON'BLE ARVIND KUMAR MISHRA-I, J.
against the complaints where the value of
the goods or services and compensation, Criminal Misc. Writ Petition No. 11158 of 2015
if any, claimed exceeds rupees twenty
lakhs but does not exceed rupees one Gyanesh Rai & Anr. ...Petitioners
Versus
crore.
State of U.P. & Ors. ...Respondents

5. The power to be exercised by the Counsel for the Petitioners:

State Commission while deciding an R.P. Singh, Dhirendra Singh
appeal also indicates that all such powers
are available in appeal which are available Counsel for the Respondents:
to the District Forum and, therefore, the Govt. Advocate
status is that of the forums, which begins
with the district level organisation, that Constitution of India, Art.-226-custodian
has been described under Section 13 (5) torture-in spite of direction given under
as being a civil court. Consequently, the Section 156(3) Cr.P.C.-no FIR lodged-
Court expressed its serious concern with
State Consumer Dispute Redressal
direction to lodge FIR and complete
Commission is the appellate court of the investigation by Officer not below in
District Forum. rank of Circle Officer-petition allowed.

6. This being the position and the Held: Para-24

manner in which the State Commission is Coupled with this, in the present case,
once such is the factual situation that is
to function, we are clearly of the opinion
so emerging that prima-facie there has
that if a direction is required to be given been custodial violence, then FIR ought
1242 INDIAN LAW REPORTS ALLAHABAD SERIES

to have been lodged and investigation examination scheduled to be held in May,

ought to have been carried out. Here, we 2015 and in between, petitioners submit
find that despite application under
that, police personnel from police station
Section 156(3) Cr.P.C. being moved and
Superintendent of Police, Mau being
Doharighat, came to petitioners' house
aware of the entire situation, till date, and petitioner no.1 was informed that he
FIR has not been lodged and no action was required for interrogation. Petitioners
has been taken by undertaking free, fair submit that petitioner no.1 was taken to
and impartial investigation, in view of the police station on 9th April, 2015 at 5
this, we proceed to pass an order asking pm and in the name of carrying out
Superintendent of Police, Mau to
forthwith ensure that FIR is lodged
interrogation, petitioner no.1 was detained
against erring police incumbents as per at police station uptil 16th April, 2015 and
the law laid down by Apex Court, in the during this period, petitioners' grievance
case of Lalita Kumari vs. Government of is that petitioner no.1 has been subjected
U.P. 2014 (2) SCC 1 and the to brutal police torture by using third
investigation in question is carried out degree methods like electric shock, severe
under his supervision by an officer not
below the rank of Circle Officer, who will
beating and insertion of aluminium wires
proceed to carry out investigation in through his mouth.
free, fair and transparent manner.
3. Petitioners' submit that
Case Law discussed: immediately thereafter, petitioner no.2
1997 (1) SCC 416; 1980 (3) SCC 70; 1985 (1) proceeded to send information to each and
SCC 552; 1993 (2) SCC 746; 1997 (1) SCC
416; 2003 (7) SCC 749; 2006(3) SCC 178;
every responsible official inclusive of
2012 (1) SCC 10; 2012 (3) SCC Cr. 733; 2014 Hon'ble the Chief Justice of this Court,
(10) SCC 635. District Magistrate, Mau, State Human
Rights Commission, Lucknow and others.
(Delivered by Hon'ble V.K. Shukla, J.) Petitioner no.1 was taken to hospital in
the city of Mau in serious condition where
1. Gyanesh Rai s/o Ganga Prasad he was admitted by the police and
Rai through the next friend his father thereafter he was shifted to Varanasi and
Ganga Prasad Rai and Ganga Prasad Rai at Varanasi x-ray was conducted at Singh
s/o Raj Narayan Rai have approached this Medical Research Centre wherein
Court, complaining of custodial violence aluminium wire has been seen in the
and requesting therein for payment of throat and abdomen of petitioner no.1.
compensation for physical sufferings and Petitioner no.1, thereafter, was taken to
mental agony as well as for initiation of Banaras Hindu University but as there
action against erring police personnel. was no reference letter he was not
admitted there and thereafter he was taken
2. Factual matrix of the case is that to P.M.C. Hospital, Durga Kund,
petitioner no.1-Gyanesh Rai is a young Varanasi and thereafter, as his condition
man and claims that he had applied for the was very serious, he was referred to
post of Constable in I.T.B.P. (Central K.G.M.C. Lucknow where he was
Force) and qualified the physical test held admitted on 18th April, 2015 and
in Dehradun on 23rd February, 2015 and thereafter after getting operated upon,
after qualifying the physical test, he was petitioner no.1 has been released.
busy in preparation of written Petitioners have contended that petitioner
3 All] Gyanesh Rai & Anr. Vs. State of U.P. & Ors. 1243

no.1 has been subjected to custodial brutality in question is much more

torture and thereafter for the relief compounded from the fact that wire in
mentioned above, present writ petition in question has been put in in his body and
question has been filed. without maintaining any records for six
days, he has been confined at the police
4. As complaint before this Court station and till today, departmental action
has been that third Degree method has that has been proposed to be taken, same
been applied by police officials namely is an eye-wash and no criminal action has
respondent no.3 to 9 in complete violation been taken whereas the police officials on
of directives issued by the Apex Court in the face of record have proceeded to
D.K. Basu vs. State of West Bengal 1997 misuse their position, and have committed
(1) SCC 416, this Court on 6th May, 2015 criminal offence, in view of this,
proceeded to ask Superintendent of compensation be awarded and directives
Police, Mau to file counter affidavit be issued for lodging of FIR against
within four days and thereafter on erring police personnels.
12.05.2015, a short counter affidavit was
filed and this Court was of the opinion 8. Shri Vimlendu Tripathi, learned
that the short counter affidavit is not at all A.G.A., on the other hand, has contended
in consonance with the directives issued that there has been no excess on the part
by this Court and this Court took serious of the police personnel and the totality of
note of the matter and asked the circumstance would speak for itself,
Superintendent of Police, Mau to file his as here anxiety of police personnel has
personal affidavit. been to crack the serious offence of loot
and murder, that has shocked the entire
5. Pursuant to order dated 12th May, society.
2015, detailed counter affidavit has been
filed appending therein the report of the 9. Police atrocities in India is not
inquiry officer as well as the report of new and same has always been a subject
preliminary inquiry and the action that has matter of controversy and debate in
been so taken. To the said counter consonance with the provisions of Article
affidavit, rejoinder affidavit has been filed 21 of the Constitution of India, as any
giving therein details of the discharge form of torture or criminality in human or
tickets dated 18th May, 2015. degrading treatment is inhibited. Torture
is not at all permitted whether it occurs
6. After pleadings mentioned above during investigation, interrogation or
have been exchanged, present writ otherwise. Custodial violence is in effect
petition has been taken up for final direct invasion of human rights. Torture
hearing and disposal. in custody flouts the basic rights of
citizens recognized by the Indian
7. Shri R.P. Singh, Advocate Constitution and is affront to human
appearing for the petitioners submitted dignity. "Custodial Torture" is a
with vehemence that this is a glaring case calculated assault on human dignity and
wherein petitioner no.1 has been nothing can be more dehumanizing as the
subjected to custodial violence by conduct of police in practising torture of
adopting third degree methods and the any kind on a person in their custody.
1244 INDIAN LAW REPORTS ALLAHABAD SERIES

Mahatma Gandhi in one of his quotes resulting in a terrible scarce in the minds
has said as follows: of common citizens that their lives and
liberty are under a new peril when the
"I object to violence because when it guardians of the law gore human rights to
appears to do good, the good is only death. The vulnerability of human rights
temporary, the evil it does is permanent." assumes a traumatic, torture some
poignancy when violent violation is
10. By resorting to custodial torture, perpetrated by the police arm of the State
for the time being, police with a view to whose function is to protect the citizen
secure evidence or confession may and not to commit gruesome offences
achieve their goal but in long run, police against them as has happened in this case,
will have to substantiate and will have to Police lock-up if reports in newspapers
face the scrutiny of Court, as to whether have a streak of credence, are becoming
evidence secured or confession made was more and more awesome cells. This
voluntary or same has been sheer outcome development is disastrous to our human
of custodial violence inflicted upon. rights awareness and humanist
Evidences and Confessions that come constitutional order.
through the route of custodial violence, in The State, at the highest
long run, do no good and prosecution has administrative and political levels, we
to pay heavy price for the same, on such hope, will organise special strategies to
facts being substantiated, otherwise police prevent and punish brutality by police
would be accomplishing behind their methodology. Otherwise, the credibility
closed doors precisely what the demands of the rule of law in our Republic vis-a-
of our legal order forbid. vis the people of the country will
deteriorate.
11. Time and again custodial torture We conclude with the disconcerting
has been at the radar of the Apex Court note sounded by Abraham Lincoln:
and Apex Court, at all point of time, has 'If you once forfeit the confidence of
viewed custodial torture with all your fellow citizens you can never regain
seriousness. their respect and esteem. It is true that
you can fool all the people some of the
12. Apex Court in the case of time, and some of the people all the time,
Raghbir Singh vs. State of Haryana 1980 but you cannot fool all the people all the
(3) SCC 70 proceeded to mention that time.'
State at the highest administrative and These observations have become
political levels would organize special necessary to impress upon' the State
strategies to prevent and punish brutality police echelons the urgency of stamping
by police methodology, otherwise, the out the vice of 'third degree' from the
credibility of the rule of law in our investigative armoury of the police."
Republic vis-a-vis the people of the
country will deteriorate. Relevant extract 13. Apex Court in the case of State
of said judgement is as follows: of Uttar Pradesh vs. Ram Sagar Yadav
and others 1985 (1) SCC 552 has
"We are deeply disturbed by the proceeded to took a note of the fact that at
diabolical recurrence of police torture the point of time when a person is in
3 All] Gyanesh Rai & Anr. Vs. State of U.P. & Ors. 1245

custody and he is subjected to any issued and same are holding the field,
atrocity, then, at the said point of time, even as on date, in addition to
police officials alone and none else, can constitutional and statutory safeguards.
give evidence as regards the Relevant extract of said judgment is as
circumstances in which a person in their follows:
custody comes to receive injuries while in
their custody. Relevant extract of said "The importance of affirmed rights of
judgement is as follows: every human being need no emphasis and,
therefore, to deter breaches thereof becomes
"Police Officers alone, and none else, a sacred duty of the Court, as the custodian
can give evidence as regards the and protector of the fundamental and the
circumstances in which a person in their basic human rights of the citizens. Custodial
custody comes to receive injuries while in violence, including torture and death in the
their custody. Bound by ties of a kind of lock ups, strikes a blow at the Rule of Law,
brotherhood, they often prefer to remain which demands that the powers of the
silent in such situations and when they executive should not only be derived from
choose to speak, they put their own gloss law but also that the same should be limited
upon facts and pervert the truth. The by law. Custodial violence is a matter of
result is that persons, on whom atrocities concern. It is aggravated by the fact that it is
are perpetrated by the police in the committed by persons who are supposed to
sanctum sanctorum of the police station, be the protectors of the citizens. It is
are left without any evidence to prove committed under the shield of uniform and
who the offenders are." authority in the four walls of a police station
or lock-up, the victim being totally helpless.
14. Apex Court, in the case of The protection of an individual from torture
Nilabati Behera @ Lalit Behera vs. State and abuse by the police and other law
of Orissa and others, 1993 (2) SCC 746 enforcing officers is a matter of deep concern
proceeded to take view that even convicts, in a free society. These petitions raise
prisoners and undertrials have right under important issues concerning police powers,
Article 21 and once an incumbent is taken including whether monetary compensation
into custody and there are injuries on his should be awarded for established
body, then State will have to explain, as to infringement of the Fundamental Rights
how he sustained the injuries, and guaranteed by Articles 21 and 22 of the
compensation can be awarded under Constitution of India. The issues are
public law remedy. fundamental.
"Torture" has not been defined in
15. Apex Court in the case of D.K. Constitution or in other penal laws.
Basu vs. State of West Bengal 1997 (1) 'Torture' of a human being by another
SCC 416, has dealt with the issue of human being is essentially an instrument
custodial violence, and has clearly ruled, to impose the will of the 'strong' over the
interrogation through essential must be on 'weak' by suffering. The word torture
scientific principles, third degree methods today has become synonymous wit the
are impermissible, balanced approach darker side of human civilisation.
should be there so that criminals don't go "Torture is a wound in the soul so
scot free. Various guidelines have been painful that sometimes you can almost
1246 INDIAN LAW REPORTS ALLAHABAD SERIES

touch it, but it is also so intangible that inhuman or degrading treatment or

there is not way to heal it. Torture is punishment." Despite the pious
anguish squeezing in your chest, cold as declaration, the crime continues unabated,
ice and heavy as a stone paralyzing as though every civilised nation shows its
sleep and dark as the abyss. Torture is concern and takes steps for its eradication.
despair and fear and rage and hate. It is a Fundamental rights occupy a place of
desire to kill and destroy including pride in the India Constitution. Article 21
yourself." provides "no person shall be deprived of
-Adriana P. Bartow his life or personal liberty expect
No violation of any one of the human according to procedure established by
rights has been the subject of so many law". Personal liberty, thus, is a sacred
Conventions and Declarations as 'torture'- and cherished right under the
all aiming at total banning of it in all Constitution. The expression "life of
forms, but inspite of the commitments personal liberty" has been held to include
made to eliminate torture, the fact remains the right to live with human dignity and
that torture is more widespread not that thus it would also include within itself a
ever before, "Custodial torture" is a naked guarantee against torture and assault by
violation of human dignity and the State or its functionaries. Article 22
degradation with destroys, to a very large guarantees protection against arrest and
extent, the individual personality. IT is a detention in certain cases and declares
calculated assault on human dignity and that no person who is arrested shall be
whenever human dignity is wounded, detained in custody without being
civilisation takes a step backward-flag of informed of the grounds of such arrest
humanity must on each such occasion fly and the shall not be denied the right to
half-mast. consult and defend himself by a legal
In all custodial crimes that is of real practitioner of his choice. Clause (2) of
concern is not only infliction of body pain Article 22 directs that the person arrested
but the mental agony which a person and detained in custody shall be produced
undergoes within the four walls of police before the nearest Magistrate within a
station or lock-up. Whether it is physical period of 24 hours of such arrest,
assault or rape in police custody, the excluding the time necessary for the
extent of trauma a person experiences is journey from the place of arrest to the
beyond the purview of law. court of the Magistrate. Article 20(3) of
"Custodial violence" and abuse of the Constitution lays down that a person
police power is not only peculiar to this accused of an offence shall not be
country, but it is widespread. It has been compelled to be a witness against himself.
the concern of international community These are some of the constitutional
because the problem is universal and the safeguard provided to a person with a
challenge is almost global. The Universal view to protect his personal liberty against
Declaration of Human Rights in 1984, and unjustified assault by the State, In
which market the emergency of tune with the constitutional guarantee a
worldwide trend of protection and number statutory provisions also seek to
guarantee of certain basic human rights, project personal liberty, dignity and basic
stipulates in Article 5 that "No one shall human rights of the citizens. Chapter V.
be subjected to torture or to curel, of Criminal Procedure Code, 1973 deals
3 All] Gyanesh Rai & Anr. Vs. State of U.P. & Ors. 1247

with the powers of arrest of a person and shows that worst violations of human
the safeguard which are required to be rights take place during the course of
followed by the police to protect the investigation, when the police with a view
interest of the arrested person. Section 41, to secure evidence or confession often
Cr. P.C. confers powers on any police resorts to third degree methods including
officer to arrest a person under the torture and adopts techniques of screening
circumstances specified therein without arrest by either not recording the arrest or
any order or a warrant of arrest from a describing the deprivation of liberty
Magistrate. Section 46 provides the merely as a prolonged interrogation. A
method and manner of arrest. Under this reading of the morning newspapers
Section no formality is necessary while almost everyday carrying reports of
arresting a person. Under Section 49, the dehumanising torture, assault, rape and
police is not permitted to use more death in custody of police or other
restraint than is necessary to permitted to governmental agencies is indeed
use more restraint than is necessary to depressing. The increasing incidence of
prevent the escape of the person. Section torture and death in custody has assumed
50 enjoins every police officer arresting such alarming proportions that it is
any person without warrant to affecting the creditibility of the Rule of
communicate to him the full particulars of Law and the administration of criminal
the offence for which he is arrested and justice system. The community rightly
the grounds for such arrest. The police feels perturbed. Society's cry for justice
officer is further enjoined to inform the becomes louder.
person arrested that he is entitled to be Custodial death is perhaps one of the
released on bail and he may arrange for worst crimes in a civilised society governed
sureties in the event of his arrest for a by the Rule of Law. The rights inherent in
non-bailable offence. Section 56 contains Articles 21 and 22(1) of the Constitution
a mandatory provision requiring the required to be jealously and scrupulously
police officer making an arrest without protected. We cannot wish away the
warrant to produce the arrested person problem. Any form of torture of cruel,
before a Magistrate without unnecessary inhuman or degrading treatment would fall
delay and Section 57 echoes Clause (2) of within the inhibition of Article 21 of the
Article 22 of the Constitution of India. Constitution, whether it occurs during
There are some other provisions also like investigation, interrogation or otherwise. If
Section 53, 54 and 167 which are aimed the functionaries of the Government become
at affording procedural safeguards to a law breakers, it is bound to breed contempt
person arrested by the police. Whenever a for law and would encourage lawlessness
person dies in custody of the police, and every man would have the tendency to
Section 176 requires the Magistrate to become law unto himself thereby leading to
hold and enquiry into the cause of death. anarchanism. No civilised nation can permit
However, inspite of the that tp happen. Does a citizen shed off his
constitutional and statutory provisions fundamental right to life, the moment a
aimed at safeguarding the personal liberty policeman arrests him? Can the right to life
and life of a citizen, growing incidence of of a citizen be put in abeyance on his arrest?
torture and deaths in police custody has These questions touch the spinal court of
been a disturbing factor. Experience human rights jurisprudence. The answer,
1248 INDIAN LAW REPORTS ALLAHABAD SERIES

indeed, has to be an emphatic 'No'. The death or injury, in police custody, it is

precious right guaranteed by Article 21 of the difficult to secure evidence against the
Constitution of India cannot be denied to policemen responsible for resorting to third
convicted undertrials, detenues and other degree methods since they are incharge of
prisoners in custody, except according to the police station records which they do not
procedure established by law by placing such find difficult to manipulate. Consequently,
reasonable restrictions as are permitted by prosecution against the delinquent officers
law. generally results in acquittal. State of
Instances have come to out notice Madhya Pradesh Vs. Shyamsunder Trivedi
were the police has arrested a person & Ors. [ 1995 (3) Scale, 343 =] is an apt
without warrant in connection with the case illustrative of the observations made
investigation of an offence, without by us above. In that case, Nathu Bnjara
recording the arrest, and the arrest person was tortured at police station, Rampura
has been subjected to torture to extract during the interrogation. As a result of
information from him for the purpose of extensive injuries caused to him he died in
further investigation or for recovery of police custody at the police station. The
case property or for extracting confession defence set up by the respondent police
etc. The torture and injury caused on the officials at the trial was that Nathu Banjara
body of the arrestee has sometime resulted had been released from police custody at
into his death. Death in custody is not about 10.30 p.m. after interrogation
generally shown in the records of the lock- 13.10.1986 itself vide entry EX. P/22A in
up and every effort is made by the police to the Roznamcha and that at about 7.00 a.m.
dispose of the body or to make out a case on 14.10.1981, a death report Ex. P/9 was
that the arrested person died after he was recorded at the police station, Rampura, at
released from custody. Any complaint the instance of Ramesh respondent No. 6,
against such torture or death is generally to the effect that he had found "one
not given any attention by the police unknown person" near a tree by the side of
officers because of ties of brotherhood. No the tank riggling with pain in his chest and
first information report at the instance of that as a soon as respondent No. 6 reached
the victim or his kith and kin is generally near him, the said person died. The further
entertained and even the higher police case set up by SI Trivedi, respondent No.
officers turn a blind eye to such 1, incharge of the police station was that
complaints. Even where a formal after making a Roznamcha entry at 7.00
prosecution is launched by the victim or a.m. about his departure from the police
his kith and kin, no direct evidence is station he (respondent No. 1- Shyamsunder
available to substantiate the charge of Trivedi) and Constable Rajaram
torture or causing hurt resulting into death respondent proceeded to the spot where the
as the police lock-up where generally dead body was stated to be lying for
torture or injury is caused is away from the conducting investigation under Section 174
public gaze and the witnesses are either Cr.P.C. He summoned Ramesh Chandra
police men or co- prisoners who are highly and Goverdhan respondents to the spot and
reluctant to appear as prosecution witness in their presence prepared a panchnama
due to fear of letaliation by the superior EX. P/27 of the dead body recording the
officers of the police. It is often seen that opinion therein to the effect that no definite
when a complaint is made against torture, cause of death was known.
3 All] Gyanesh Rai & Anr. Vs. State of U.P. & Ors. 1249

Police is, no doubt, under a legal perform a difficult and delicate task,
duty and has legitimate right to arrest a particularly in view of the deteriorating law
criminal and to interrogate him during the and order situation, communal riots,
investigation of a an offence but it must political turmoil, student unrest, terrorist
be remembered that the law does not activities, and among others the increasing
permit use of third degree methods or number of underworld and armed gangs and
torture of accused in custody during criminals, Many hard core criminals like
interrogation and investigation with that extremist, the terrorists, drug peddlers,
view to solve the crime. End cannot smugglers who have organised gangs, have
justify the means. The interrogation and taken strong roots in the society. It is being
investigation into a crime should be in said in certain quarters that with more and
true sense purpose full to make the more liberalisation and enforcement of
investigation effective. By torturing a fundamental rights, it would lead to
person and using their degree methods, difficulties in the detection of crimes
the police would be accomplishing behind committed by such categories of hardened
the closed doors what the demands of our criminals by soft peddling interrogation. It
legal order forbid. No. society can permit is felt in those quarters that if we lay to
it. much of emphasis on protection of their
How do we check the abuse of police fundamental rights and human rights such
power? Transparency of action and criminals may go scot-free without
accountability perhaps are tow possible exposing any element or iota or criminality
safeguards which this Court must insist with the result, the crime would go
upon. Attention is also required to be paid unpunished and in the ultimate analysis the
to properly develop work culture, training society would suffer. The concern is
and orientation of police force consistent genuine and the problem is real. To deal
with basic human values. Training with such a situation, a balanced approach is
methodology of the police needs needed to meet the ends of justice. This all
restructuring. The force needs to be the more so, in view of the expectation of
infused with basic human values and the society that police must deal with the
made sensitive to the constitutional ethos. criminals in an efficient and effective
Efforts must be made to change the manner and bring to book those who are
attitude and approach of the police involved in the crime. The cure cannot,
personal handling investigations so that however, be worst than the disease itself.
they do not sacrifice basic human values There can be no gain saying that
during interrogation and do not resort to freedom of an individual must yield to the
questionable form of interrogation. With a security of the State. The right of
view to bring in transparency, the preventive detention of individuals in the
presence of the counsel of the arrestee at interest of security of the State in various
some point of time during the situations prescribed under different
interrogation may deter the police from statures has been upheld by the Courts.
using third degree methods during The right to interrogate the detenues,
interrogation. culprits or arrestees in the interest of the
There is one other aspect also which nation, must take precedence over an
needs out consideration, We are conscious individual's right to personal liberty. The
of the fact that the police in India have to latin maxim salus populi est supreme lex
1250 INDIAN LAW REPORTS ALLAHABAD SERIES

(the safety of the people is the supreme scientific methods of investigation and
law) and salus republicae est suprema lex train the investigators properly to
(safety of the state is the supreme law) co- interrogate to meet the challenge.
exist an dare not only important and We therefore, consider it
relevant but lie at the heart of the doctrine appropriate to issue the following
that the welfare of an individual must requirements to be followed in all cases of
yield to that of the community. The action arrest or detention till legal provisions are
of the State, however must be "right, just made in that behalf as preventive
and fair". Using any form of torture for measures :
extracting any kind of information would (1) The police personnel carrying out
neither be 'right nor just nor fair' and, the arrest and handling the interrogation
therefore, would be impermissible, being of the arrestee should bear accurate,
offensive to Article 21. Such a crime- visible and clear identification and name
suspect must be interrogated - indeed togs with their designations. The
subjected to sustained and scientific particulars of all such police personnel
interrogation determined in accordance who handle interrogation of the arrestee
with the provisions of law. He cannot, must be recorded in a register.
however, be tortured or subjected to third (2) That the police officer carrying
degree methods or eleminated with a view out the arrest of the arrestee shall prepare
to elicit information, extract confession or a memo of arrest at the time of arrest a
drive knowledge about his accomplices, such memo shall be attested by atleast one
weapons etc. His Constitutional right witness. who may be either a member of
cannot be abridged except in the manner the family of the arrestee or a respectable
permitted by law, though in the very person of the locality from where the
nature of things there would be qualitative arrest is made. It shall also be counter
difference in the methods of interrogation signed by the arrestee and shall contain
of such a person as compared to an the time and date of arrest.
ordinary criminal. Challenge of terrorism (3) A person who has been arrested
must be met wit innovative ideas and or detained and is being held in custody in
approach. State terrorism is not answer to a police station or interrogation centre or
combat terrorism. State terrorism is no other lock-up, shall be entitled to have
answer to combat terrorism. State one friend or relative or other person
terrorism would only provide legitimacy known to him or having interest in his
to 'terrorism'. That would be bad for the welfare being informed, as soon as
State, the community and above all for the practicable, that he has been arrested and
Rule of Law. The State must, therefore, is being detained at the particular place,
ensure that various agencies deployed by unless the attesting witness of the memo
it for combating terrorism act within the of arrest is himself such a friend or a
bounds of law and not become law unto relative of the arrestee.
themselves. that the terrorist has violated (4) The time, place of arrest and
human rights of innocent citizens may venue of custody of an arrestee must be
render him liable for punishment but it notified by the police where the next
cannot justify the violation of this human friend or relative of the arrestee lives
rights expect in the manner permitted by outside the district or town through the
law. Need, therefore, is to develop legal Aid Organisation in the District and
3 All] Gyanesh Rai & Anr. Vs. State of U.P. & Ors. 1251

the police station of the area concerned communicated by the officer causing the
telegraphically within a period of 8 to 12 arrest, within 12 hours of effecting the
hours after the arrest. arrest and at the police control room it
(5) The person arrested must be should be displayed on a conspicuous
made aware of this right to have someone notice board."
informed of his arrest or detention as soon
he is put under arrest or is detained. 16. Apex Court in the case of
(6) An entry must be made in the Shakila Abdul Gafar Khan vs. Vasant
diary at the place of detention regarding Raghunath Dhoble and another 2003 (7)
the arrest of the person which shall also SCC 749 has proceeded to make a
disclose the name of he next friend of the mention that who are at the helm of
person who has been informed of the affairs who proclaim from rooftops to be
arrest an the names and particulars of the the defenders of democracy and
police officials in whose custody the protectors of people's rights and do not
arrestee is. hesitate to condescend behind the screen
(7) The arrestee should, where he so to let loose their men in uniform to settle
requests, be also examined at the time of personal scores, reigning ignorance of
his arrest and major and minor injuries, if what happens and pretending to be peace-
any present on his/her body, must be loving puritans and saviours of citizens'
recorded at that time. The "Inspection rights. Relevant extract of said judgement
Memo" must be signed both by the is as follows:
arrestee and the police officer effecting
the arrest and its copy provided to the "If it is assuming alarming
arrestee. proportions, now a days, all around it is
(8) The arrestee should be subjected merely on account of the devilish devices
to medical examination by trained doctor adopted by those at the helm of affairs
every 48 hours during his detention in who proclaim from roof tops to be the
custody by a doctor on the panel of defenders of democracy and protectors of
approved doctors appointed by Director, peoples' rights and yet do not hesitate to
Health Services of the concerned Stare or condescend behind the screen to let loose
Union Territory. Director, Health Services their men in uniform to settle personal
should prepare such a penal for all Tehsils scores, feigning ignorance of what
and Districts as well. happens and pretending to be peace
(9) Copies of all the documents loving puritans and saviours of citizens'
including the memo of arrest, referred to rights.
above, should be sent to the illaga Article 21 which is one of the
Magistrate for his record. luminary provisions in the Constitution of
(10) The arrestee may be permitted India, 1950 (in short the 'Constitution')
to meet his lawyer during interrogation, and is a part of the scheme for
though not throughout the interrogation. fundamental rights occupies a place of
(11) A police control room should be pride in the Constitution. The Article
provided at all district and state mandates that no person shall be deprived
headquarters, where information of his life and personal liberty except
regarding the arrest and the place of according to the procedure established by
custody of the arrestee shall be law. This sacred and cherished right i.e.
1252 INDIAN LAW REPORTS ALLAHABAD SERIES

personal liberty has an important role to and liberty are under a new and
play in the life of every citizen. Life or unwarranted peril because guardians of
personal liberty includes a right to live law destroy the human rights by custodial
with human dignity. There is an inbuilt violence and torture and invariably
guarantee against torture or assault by the resulting in death. The vulnerability of
State or its functionaries. Chapter V of the human rights assumes a traumatic torture
Code of Criminal Procedure, 1973 (for when functionaries of the State whose
short the 'Code') deals with the powers of paramount duty is to protect the citizens
arrest of persons and the safeguards and not to commit gruesome offences
required to be followed by the police to against them, in reality perpetrate them.
protect the interest of the arrested person. The concern which was shown in
Articles 20(3) and 22 of the Constitution Raghubir Singh's case (supra) more than
further manifest the constitutional two decades back seems to have fallen to
protection extended to every citizen and leaf ears and the situation does not seem
the guarantees held out for making life to be showing any noticeable change. The
meaningful and not a mere animal anguish expressed in Gauri Shanker
existence. It is therefore difficult to Sharma v. State of U.P. (AIR 1990 SC
comprehend how torture and custodial 709), Bhagwan Singh and Anr. v. State of
violence can be permitted to defy the Punjab (1992 (3) SCC 249), Smt. Nilabati
rights flowing from the Constitution. The Behera @Lalita Behera v. State of Orissa
dehumanizing torture, assault and death in and Ors. (AIR 1993 SC 1960), Pratul
custody which have assumed alarming Kumar Sinha v. State of Bihar and Anr.
proportions raise serious questions about (1994 Supp. (3) SCC 100), Kewal Pati
the credibility of rule of law and (Smt.) v. State of U.P. and Ors. (1995 (3)
administration of criminal justice system. SCC 600), Inder Singh v. State of Punjab
The community rightly gets disturbed. and Ors. (1995(3) SCC 702), State of
The cry for justice becomes louder and M.P. v. Shyamsunder Trivedi and Ors.
warrants immediate remedial measures. (1995 (4) SCC 262) and by now
This Court has in a large number of cases celebrated decision in Shri D.K. Basu v.
expressed concern at the atrocities State of West Bengal (JT 1997 (1) SC 1)
perpetuated by the protectors of law. seems to have caused not even any
Justice Brandies's observation which have softening attitude to the inhuman
become classic are in following immortal approach in dealing with persons in
words: custody.
"Government as the omnipotent and Rarely in cases of police torture or
omnipresent teacher teaches the whole custodial death, direct ocular evidence of
people by its example, if the Government the complicity of the police personnel
becomes a law breaker, it breeds alone who can only explain the
contempt for law, it invites every man to circumstances in which a person in their
become a law into himself". (in (1928) custody had died. Bound as they are by
277 U.S. 438, quoted in (1961) 367 U.S. the ties of brotherhood, it is not unknown
643 at 659)." that the police personnel prefer to remain
The diabolic recurrence of police silent and more often than not even
torture resulting in a terrible scare in the pervert the truth to save their colleagues -
minds of common citizens that their lives and the present case is an apt illustration -
3 All] Gyanesh Rai & Anr. Vs. State of U.P. & Ors. 1253

as to how one after the other police methods. They also tend to arrest
witnesses feigned ignorance about the "someone" in a hurry on the basis of
whole matter." incomplete investigation, just to ease the
pressure. Time has come for an attitudinal
17. Apex Court in the case of Sube change not only in the minds of the police,
Singh vs. State of Haryana and others but also on the part of the public.
2006 (3) SCC 178 has taken note of Difficulties in criminal investigation and the
custodial violence to be torture and third time required for such investigation should
degree methods used by police during be recognized, and police should be allowed
interrogation and has discussed in detail to function methodically without
the reasons behind such practice and has interferences or unnecessary pressures. If
also given preventive measures as to how police are to perform better, the public
such violence can be tackled. Relevant should support them, government should
extract of said judgement is as follows: strengthen and equip them, and men in
power should not interfere or belittle them.
"Unfortunately, police in the country The three wings of the Government should
have given room for an impression in the encourage, insist and ensure thorough
minds of public, that whenever there is a scientific investigation under proper legal
crime, investigation usually means rounding procedures, followed by prompt and
up all persons concerned (say all servants in efficient prosecution. Be that as it may.
the event of a theft in the employer's house, Custodial violence requires to be
or all acquaintances of the deceased, in the tackled from two ends, that is, by taking
event of a murder) and subjecting them to measures that are remedial and
third-degree interrogation in the hope that preventive. Award of compensation is one
someone will spill the beans. This of the remedial measures after the event.
impression may not be correct, but instances Effort should be made to remove the very
are not wanting where police have resorted causes, which lead to custodial violence,
to such a practice. Lack of training in so as to prevent such occurances.
scientific investigative methods, lack of Following steps, if taken, may prove to be
modern equipment, lack of adequate effective preventive measures:
personnel, and lack of a mindset respecting a) Police training should be re-
human rights, are generally the reasons for oriented, to bring in a change in the
such illegal action. One other main reason is mindset and attitude of the Police
that the public (and men in power) expect personnel in regard to investigations, so
results from police in too short a span of that they will recognize and respect
time, forgetting that methodical and human rights, and adopt thorough and
scientific investigation is a time consuming scientific investigation methods.
and lengthy process. Police are branded as b) The functioning of lower level
inefficient even when there is a short delay Police Officers should be continuously
in catching the culprits in serious crimes. monitored and supervised by their
The expectation of quick results in high- superiors to prevent custodial violence
profile or heinous crimes builds enormous and adherence to lawful standard methods
pressure on the police to somehow 'catch' of investigation.
the 'offender'. The need to have quick c) Compliance with the eleven
results tempts them to resort to third degree requirements enumerated in D.K. Basu
1254 INDIAN LAW REPORTS ALLAHABAD SERIES

(supra) should be ensured in all cases of treatment is inhibited. Torture is not

arrest and detention. permissible whether it occurs during
d) Simple and fool-proof procedures investigation, interrogation or otherwise.
should be introduced for prompt The wrong-doer is accountable and the
registration of first information reports State is responsible if a person in custody
relating to all crimes. of the police is deprived of his life except
e) Computerization, video-recording, in accordance with the procedure
and modern methods of records established by law. However, when the
maintenance should be introduced to matter comes to the court, it has to
avoid manipulations, insertions, balance the protection of fundamental
substitutions and ante-dating in regard to rights of an individual and duties of the
FIRs, Mahazars, inquest proceedings, police. It cannot be gainsaid that freedom
Port-mortem Reports and Statements of of an individual must yield to the security
witnesses etc. and to bring in transparency of the State. Latin maxim salus populi est
in action. suprema lex - the safety of the people is
f) An independent investigating supreme law; and salus reipublicae
agency (preferably the respective Human suprema lex - safety of the State is
Rights Commissions or CBI) may be supreme law, 14 co-exist. However, the
entrusted with adequate power, to doctrine of the welfare of an individual
investigate complaints of custodial must yield to that of the community.
violence against Police personnel and take The right to life has rightly been
stern and speedy action followed by characterised as "`supreme' and `basic'; it
prosecution, wherever necessary. includes both so-called negative and
The endeavour should be to achieve positive obligations for the State". The
a balanced level of functioning, where negative obligation means the overall
police respect human rights, adhere to prohibition on arbitrary deprivation of
law, and take confidence building life. In this context, positive obligation
measures (CBMs), and at the same time, requires that State has an overriding
firmly deal with organized crime, obligation to protect the right to life of
terrorism, white-collared crime, every person within its territorial
deteriorating law and order situation etc." jurisdiction. The obligation requires the
State to take administrative and all other
18. Apex Court in the case of measures in order to protect life and
Prithipal Singh and others vs. State of investigate all suspicious deaths.
Punjab and another 2012 (1) SCC 10 has The State must protect victims of
considered that the State has to protect the torture, ill-treatment as well as the human
victim of torture and State cannot be rights defender fighting for the interest of
permitted to negate such a right. Relevant the victims, giving the issue serious
extract of said judgement is as follows: consideration for the reason that victims
of torture suffer enormous consequences
"Police atrocities in India had always psychologically. The problems of acute
been a subject matter of controversy and stress as well as a post-traumatic stress
debate. In view of the provisions of disorder and many other psychological
Article 21 of the Constitution, any form of consequences must be understood in
torture or cruel, inhuman or degrading correct perspective. Therefore, the State
3 All] Gyanesh Rai & Anr. Vs. State of U.P. & Ors. 1255

must ensure prohibition of torture, cruel, dignity". Any violation of human rights is
inhuman and degrading treatment to any viewed seriously by this Court as right to
person, particularly at the hands of any life is the most precious right guaranteed
State agency/police force. by Article 21 of the Constitution. The
In addition to the protection provided guarantee by Article 21 is available to
under the Constitution, the Protection of every person and even the State has no
Human Rights Act, 1993, also provide for authority to violate that right.
protection of all rights to every individual. It In some of the countries when a
inhibits illegal detention. Torture and police firearms officer is involved in a
custodial death have always been shooting, there are strict guidelines and
condemned by the courts in this country. In procedures in place to ensure that what
its 113th report, the Law Commission of has happened is thoroughly investigated.
India recommended the amendment to the In India, unfortunately, such structured
Indian Evidence Act, 1872 (hereinafter guidelines and procedures are not in place
called "Evidence Act"), to provide that in where police is involved in shooting and
case of custodial injuries, if there is evidence, death of the subject occurs in such
the court may presume that injury was shooting. We are of the opinion that it is
caused by the police having the custody of the constitutional duty of this Court to put
that person during that period. Onus to prove in place certain guidelines adherence to
contrary is on the police authorities. Law which would help in bringing to justice
requires for adoption of a realistic approach the perpetrators of the crime who take law
rather than narrow technical approach in in their own hands.
cases of custodial crimes." Article 21 of the Constitution provides
"no person shall be deprived of his life or
19. Apex Court, in the case of personal liberty except according to
Mehmood Nayyar Azam vs. State of procedure established by law". This Court
Chattisgarh and others 2012 (3) SCC has stated time and again that Article 21
Cr.733, has extensively dealt with the confers sacred and cherished right under the
issue of custodial humiliation and mental Constitution which cannot be violated,
torture and the way and manner in which except according to procedure established
compensation can be awarded under by law. Article 21 guarantees personal
public law remedy. liberty to every single person in the country
which includes the right to live with human
20. Apex Court in the case of People's dignity.
Union for Civil Liberties and another vs. In line with the guarantee provided
State of Maharashtra and others 2014 (10) by Article 21 and other provisions in the
SCC 635 has clearly mentioned that Article Constitution of India, a number of
21 of Constitution of India guarantees "right statutory provisions also seek to protect
to live with human dignity" and any violation personal liberty, dignity and basic human
of human rights is viewed seriously. rights. In spite of Constitutional and
Relevant extract of said judgement is as statutory provisions aimed at safeguarding
follows: the personal liberty and life of a citizen,
the cases of death in police encounters
"Article 21 of the Constitution of continue to occur. This Court has been
India guarantees "right to live with human confronted with encounter cases from
1256 INDIAN LAW REPORTS ALLAHABAD SERIES

time to time. In Chaitanya Kalbagh3, this find, in the present case, is that it reflects
Court was concerned with a writ petition a sorry state of affairs as the factual
filed under Article 32 of the Constitution situation that is so emerging that in
wherein the impartial investigation was reference of investigation of Case Crime
sought for the alleged killing of 299 No.185 of 2015 under Sections 394 and
persons in the police encounters. The 302 IPC, the petitioner has been up picked
Court observed that in the facts and for investigation and thereafter without
circumstances presented before it, there maintaining any record whatsoever, he
was an imperative need of ensuring that has been detained at the police station
the guardians of law and order do in fact w.e.f. 9th April, 2015 upto 15th April,
observe the code of discipline expected of 2015 and during this period, the condition
them and that they function strictly as the of petitioner no.1 has deteriorated and he
protectors of innocent citizens. has been taken to various hospitals and in
We are not oblivious of the fact that the x-ray report that has been so brought
police in India has to perform a difficult on record, wire has been found in the
and delicate task, particularly, when many body of petitioner no.1 and in Magisterial
hardcore criminals, like, extremists, Enquiry that has been so conducted on
terrorists, drug peddlers, smugglers who 18th June, 2015, this much fact has been
have organized gangs, have taken strong recorded that without any record being
roots in the society but then such maintained, petitioner no.1 has been
criminals must be dealt with by the police illegally detained at the police station and
in an efficient and effective manner so as in the Magisterial Enquiry positive
to bring them to justice by following rule opinion has not been given and on the
of law. We are of the view that it would surmises and conjectures, it has been
be useful and effective to structure mentioned that it cannot be said with
appropriate guidelines to restore faith of surety as to whether he has inserted the
the people in police force. In a society wire himself or police personnel has done
governed by rule of law, it is imperative the same. There is no occasion or
that extra-judicial killings are properly convincing reason to believe this theory
and independently investigated so that that petitioner no.1 would insert wire on
justice may be done." his own. Once petitioner no.1 has been in
police custody, then it was the obligation
21. Consistent message has been of police officials to explain, as to from
sent to the members of police force that where the wire has come in the body of
an incumbent in custody cannot be put to petitioner no.1. Finding recorded that he
tremendous psychological pressure by has been illegally detained at the police
cruel, inhuman and degrading treatment, station and in his body wire has been
and police officers should have greatest found is fully supported from the
regard for personal liberty of citizens as documentary evidence maintained at
they are the custodians of law and order police station as well as from the medical
and hence, they should not flout the law evidence available on record.
by stooping to bizarre act of lawlessness.
23. Once such is the factual situation
22. On all these parameters, the case that is so emerging in the present case that
in hand is being looked into and what we petitioner no.1 has been subjected to
3 All] Raj Narain Vs. Union of India & Ors. 1257

torture by police taking recourse to against erring police incumbents as per

violence, then, in the facts of the case, the the law laid down by Apex Court, in the
request that has been made by the petitioner case of Lalita Kumari vs. Government of
for awarding him compensation being U.P. 2014 (2) SCC 1 and the investigation
victim of custodial violence has to be in question is carried out under his
accepted, inasmuch as, petitioner no.1 has supervision by an officer not below the
been forced to suffer lot of physical and rank of Circle Officer, who will proceed
mental agony as is reflected from the to carry out investigation in free, fair and
photograph at page 46 of paper book and transparent manner.
for number of days he has been forced to
spent in hospital. Awarding of 25. With these
compensation is demand of the situation, observations/directions, writ petition is
looking to the agony that a young man has allowed.
to undergo, and the fact that his career to --------
join I.T.B.P. has been withered away. ORIGINAL JURISDICTION
Treatment meted to petitioner is purely CIVIL SIDE
DATED: ALLAHABAD 25.08.2015
inhuman, that has inflicted immense mental
pain leading to sense of insecurity and BEFORE
helplessness in him. In this background, we THE HON'BLE ARUN TANDON, J.
proceed to award compensation of Rs.5 lacs THE HON'BLE SHASHI KANT. J.
to petitioner no.1 to be paid by the State
Government within two months from the C.M.W.P. No. 12239 of 2003
date of receipt of certified copy of this
order. In case petitioners have a strong Raj Narain ...Petitioner
Versus
feeling that they are entitled for much more
Union of India & Ors. ...Respondents
quantum of damages, they can always
invoke common law remedy for additional Counsel for the Petitioner:
compensation. Sri W.H. Khan, Sri J.H. Khan

24. Coupled with this, in the present Counsel for the Respondents:
case, once such is the factual situation that S.S.C., B.N. Singh, Sri H.C. Dubey
is so emerging that prima-facie there has
been custodial violence, then FIR ought to Constitution of India, Art.-226-Back
have been lodged and investigation ought wages-dismissal on criminal prosecution-
to have been carried out. Here, we find FIR lodged by employer-if conviction-
altered in appeal or fair acquittal-held-
that despite application under Section
entitled for full back wages for the period
156(3) Cr.P.C. being moved and not allowed to work-the employer has to
Superintendent of Police, Mau being face the consequences-to the extent the
aware of the entire situation, till date, FIR order by Tribunal stand modified.
has not been lodged and no action has
been taken by undertaking free, fair and Held: Para-15
According to the petitioner, the
impartial investigation, in view of this, we
observation made in the judgment that if
proceed to pass an order asking the criminal proceeding ultimately
Superintendent of Police, Mau to resulted in acquittal of the employee
forthwith ensure that FIR is lodged concerned where included at the behest
1258 INDIAN LAW REPORTS ALLAHABAD SERIES

of the employer, perhaps different was not reinstated, he filed Original

considerations may arise clearly applies Application No. 907 of 2002 before the
to the facts of the present case in as
Central Administrative Tribunal. The
much as the petitioner was required to
undergo criminal trial in pursuance to a
original application was allowed vide
first information report by an employer. order dated 11.12.2002 and in pursuance
Once the employee has been acquitted of thereof he was reinstated.
the criminal offence, the employer
should bear the consequences and 4. There is no dispute with regard to
petitioner must be paid full salary for the
period he was kept out of employment.
the payment of salary and other allowances
to the petitioner subsequent to reinstatement
Case Law discussed: in terms of the order of the Tribunal referred
2014 (4) AWC 3643 (SC); JT 2015 (3) SC 344; to above on behalf of the petitioner-
(2004) 1 SCC 121; (1996) 11 SCC 603. employee. He is however, not satisfied with
the part of the order of the Tribunal
(Delivered by Hon'ble Arun Tandon, J.) whereunder the Tribunal has held that the
petitioner will not be entitled to back wages
1. Heard learned counsel for the i.e. for the period from the date of dismissal
parties and perused the record. till the date of reinstatement. Challenging
the order so passed, the petitioner has
2. The Petitioner before this Court was approached this Court.
employed as Sorting Assistant in Railway
Mail Service. He was suspected to be 5. On behalf of the petitioner, it is
involved in racket of payment of bogus heavy contended that once it has been found that
value money orders. An FIR was lodged. The the criminal offence as alleged against the
criminal trial with reference to the first petitioner was not made out and he has been
information report resulted in conviction of acquitted by the criminal court, he becomes
the petitioner for offences under Sections entitled for full salary for the period, he was
419,420, 467, as per order of the Additional kept out of employment. It is submitted that
Chief Judicial Magistrate, Varanasi dated the FIR was lodged by the employer and the
29.1.1997 passed in Criminal Case No. 509 of entire proceeding had been taken at the
1996. Because of the conviction of the behest of the employer.
petitioner in the criminal case under Sections
419, 420, 467 I.P.C., the railways had no other
6. Counsel for the petitioner in
option but to dismiss the petitioner from the support of his plea has placed reliance
service vide order dated 28.2.1997 in exercise
upon the judgment of the Apex Court in
of power under Rule-9(1) of Central Civil
the case of Tapash Kumar Paul Vs. BSNL
Services (Classification, Control and Appeal) and Anr., reported in 2014 (4) AWC 3643
Rules, 1965.
(SC), paragraphs-10, 11 and 12. He has
also placed reliance upon the judgment of
3. The petitioner, preferred an the Apex Court in the case of State of
appeal against the order of conviction U.P. Vs. Charan Singh, reported in JT
being Appeal No. 14 of 1997, which was 2015(3)SC 344, paragraph-16 as well as
finally allowed under judgment and order paragraph 18 of the said judgment. It is
of the District and Sessions Judge, lastly stated that the Apex Court itself in
Varanasi dated 31.8.2001. The petitioner the case of Union of India and others Vs.
3 All] Raj Narain Vs. Union of India & Ors. 1259

Jaipal Singh, reported in (2004) 1 SCC 9. There is hardly any dispute on the
121, has explained that if the prosecution facts between the parties.
which ultimately resulted in acquittal of
the employee concerned was at the behest 10. So far as the judgments relied
of or by the department itself, perhaps upon by the counsel for the petitioner in the
different considerations may arise. He cases of Union of India and others Vs.
submits in the facts of the case the Jaipal Singh (supra), Tapash Kumar Paul
prosecution had been initiated at the Vs. BSNL and Anr (supra) and State of
behest of the employer and therefore, the U.P. Vs. Charan Singh (supra), are
judgment in the case of Ranchhodji concerned, we find that they deal with a
Chaturji Thakore Vs. Superintendent dispute pertaining to the dismissal of an
Engineer, Gujarat Electricity Board, employee after departmental enquiry and
Himmatnagar (Gujarat) and Another, the Apex Court in the said judgments has
reported in (1996) 11 SCC 603 will not opined that unless there are exceptional
apply. circumstances, the normal award by
Industrial Tribunal should be of
7. Counsel for the respondents reinstatement with back wages once the
however, with reference to the judgment dismissal is found to be unjustified.
of the Apex Court in the case of
Rannchhodji Chaturji Thakore (supra) 11. But these judgments in our
submits that the Supreme Court had made opinion, will have no application in the case
a distinction in the matter of payment of at hand in as much as the Apex Court in the
back wages in respect of employees who case of Rannchhodji Chaturji Thakore
are proceeded departmentally and then (supra) has clearly made a distinction in the
dismissed from service vis a vis the matter of dismissal of an employee because
employees, who are dismissed from of conviction for a criminal offence vis a vis
service after convicting by the competent dismissal after departmental enquiry.
court of law. The Supreme Court has held
that the employer has no other option, but 12. The Apex Court has held that
to dismiss an employee once he is held where dismissal is a result of a conviction in
guilty of criminal offence. In these a criminal case, then the employer is duty
circumstances, the employer could not bound under law to dismiss the employee
obtaine the services of the employee concerned and in that circumstance, the
concerned because of the law applicable, employer is denied the service of the
therefore, question of payment of back employee concerned, therefore, the question
wages would not arise. He further submits of back wages could not be agitated. It has
that the judgment in the case of been explained that the question of back
Rannchhodji Chaturji Thakore (supra) has wages would be considered only if the
been approved by the Supreme Court in respondents have taken action by way of
the case of Union of India and others Vs. disciplinary proceedings and the action was
Jaipal Singh (supra). found to be unsustainable in law.

8. We have heard learned counsel 13. The facts of the present case are
for the parties and have examined the more alein to the facts in the case of
records of the case. Rannchhodji Chaturji Thakore (supra).
1260 INDIAN LAW REPORTS ALLAHABAD SERIES

14. This takes the Court to the 18. We may record that unless and
judgment in the case of Jaipal Singh until it is established that the FIR was
(supra), the Apex Court has held that if registered for malafide intentions
conviction of the employee concerned deliberate motive to keep the employee
was at the behest of employer different out of employment, there cannot be any
consideration may arise. difference in the considerations which
follow in the matter of dismissal because
15. According to the petitioner, the of conviction in a criminal trial and
observation made in the judgment that if ultimate acquittal thereof vis a vis a case
the criminal proceeding ultimately resulted where the FIR was registered by an
in acquittal of the employee concerned independent person. The observations of
where included at the behest of the the Supreme Court in respect of different
employer, perhaps different considerations considerations need be examined, in light
may arise clearly applies to the facts of the of the facts leading to the FIR.
present case in as much as the petitioner
was required to undergo criminal trial in 19. In the facts of this case, there is
pursuance to a first information report by hardly any pleading of malafide against
an employer. Once the employee has been the employer in the matter of lodging of
acquitted of the criminal offence, the the FIR.
employer should bear the consequences 20. In our opinion, general principle
and petitioner must be paid full salary for as laid down in the case of Rannchhodji
the period he was kept out of employment. Chaturji Thakore (supra), that the
employer has no other option but to
16. Sri Ashok Mehta, counsel for the dismiss the employee, if he is held guilty
employer submits that the Apex Court in criminal offence, because of which the
while making the observation that employer is deprived of the service of the
different consideration may prevail, had employer in view of statutory provision
not laid down any such proposition that has to be applied in this case. The
the employee would be entitled to full employer cannot be directed to pay back
salary, if he is acquitted in the appeal in wages for the period, the employer was
all cases where FIR was registered by the out of employment.
employer.
21. But we are conscious of the fact
17. Having considered the that the Apex Court in the case of Union
judgments of the Apex Court in the case of India and others Vs. Jaipal Singh
of Rannchhodji Chaturji Thakore (supra) (supra) has laid down that the the
and Union of India and others Vs. Jaipal employee would be entitled to his back
Singh (supra), we find that although there wages from the date he is acquitted of the
is an observation passed by the Apex criminal charges.
Court that different considerations may
result if the criminal case was instituted at 22. In view of the aforesaid, we hold
the behest of the employer but what will that the petitioner would be entitled to his
be these considerations have not been full back wages from the date of the order
spelled out in the said judgment of Jaipal of the acquittal i.e. 30.8.2001. Therefore,
Singh (supra). the order of the Director in so far as it
3 All] Bandhu Prasad Vs. State of U.P. & Ors. 1261

refuses back wages for the period between Held: Para-13

30.8.2001 till date of reinstatement cannot In view of the aforesaid decision of the
Division Bench in the case of Jai Prakash
be legal and is hereby quashed. The order
(Supra) wherein it has been categorically
of the Tribunal dated 11.12.2002 to that held that the work- charge employees
extent is set aside. are not entitled to the benefit which are
permissible to regular employee under
23. It is held that the petitioner the Rules, which was further affirmed by
would be entitled to back wages for the Hon'ble the Apex Court holding that
there is nothing on record to suggest any
period commencing from 30.8.2001, till rule or scheme framed by the State to
the date of reinstatement with all count the work charge period for the
consequentil benefits The amount in that purpose in the regular establishment. In
regard may be computed within two absence of any such Rules or Scheme the
months and be paid to the petitioner Hon'ble Apex Court did not find any
within a further period of two months. merit to interfere with the impugned
judgement and the Special Leave
Petition was dismissed. In the present
24. The writ petition is disposed of case also there are no Rules or Scheme
accordingly. providing for grant of pension in work
-------- charge establishment.
ORIGINAL JURISDICTION
CIVIL SIDE Case Law discussed:
DATED: ALLAHABAD 13.07.2015 Writ-A No. 17150 of 2015; Special Appeal
Defective No. 264 of 2013; Special Leave
BEFORE Petition-C No. 22271 of 2013; (2010) 4 SCC
THE HON'BLE VIVEK KUMAR BIRLA, J. 317; (ADJ) 382 (DB).

C.M.W.P. No. 14756 of 2009 (Delivered by Hon'ble Vivek Kumar

Birla, J.)
Bandhu Prasad ...Petitioner
Versus 1. Heard learned counsel for the
State of U.P. & Ors. ...Respondents petitioner and learned Standing Counsel.
Counsel for the Petitioner:
2. The present petition has been filed
Sri Nasiruddin Warsi, Sri R.P.L. Srivastava,
for order or direction in the nature of
Sri S.C. Srivastava
mandamus directing the respondents to
Counsel for the Respondents: release the pension of the petitioner due
C.S.C. from the date of his retirement forthwith.

Civil Services Regulation 378 (ii)-qualifying 3. According to the petition, the

period of Service-for pension purpose-work petitioner was initially appointed on the
charge employes-whether period of work post Beldar on 1.12.1969. Thereafter he
charge can be considered for pension after
was appointed as Telephone Operator
regularization?-held-'No'-in view of Division
Bench case of Jai Prakash as well as of Apex from 1.10.1982 and worked till 1.7.1996.
Court-in Punjab State Electricity Vs. Narata On 1.7.1996 he was promoted to the post
Singh-in absence of any rule or policy- of Seench Pal and worked till 31.1.2006
functioning of work charge can not be and he has thus completed 37 years of
taken into consideration-petition dismissed. continue work without any break
1262 INDIAN LAW REPORTS ALLAHABAD SERIES

4. The averments made in paragraphs in the Work Charge Establishment, as

6,7 and 8 of the counter affidavit is quoted as Beldar from 1.1.1975 to 30.6.1996. The
under:- answering respondent further submits that
the gratuity for the period of services
''6. That it is stated that the petitioner rendered by the petitioner in Work
Bandhu Prasad was employed in the office of Charge Establishment has already been
the answering respondent as Daily-wages paid by an order dated 21.6.2007 and the
employee from 1.12.1996 to 31.12.1974, and amount of Rs.32,907/- has been paid to
thereafter, the petitioner worked for the post the petitioner. A true copy of the
of Beldar in the Work Charge Establishment Government Order dated 1.7.1989, and a
from 1.1.1975 to 30.6.1996. it is further true copy of the order dated 21.6.2007,
stated that the petitioner's services have been are being filed herewith and marked as
regularized in the regular establishment by Annexure Nos. CA.2 and CA.3 to this
an order dated 29.6.1996 issued by ther Counter affidavit.''
Executive Engineer, Irrigation Divison, Ist, 8. That it is relevant to mention here
Deoria and in pursuance thereof, the that the gratuity amount of Rs. 38,190/-
petitioner joined his duties on 1.7.1996 and relating to the services rendered by the
continued to work as Sinchpal and petitioner in the regular establishment has
superannuated from the said post of Sinchpal also been paid on 12.7.2006. A true copy of
on 31.1.2006. A true copy of the order dated the forwarding letter by Joint Director,
29.6.1996 issued by the Executive Engineer, Treasury and Pension, Gorakhpur Divison
Irrigation Divison, Ist, Doria, is being filed to the Treasury Officer, Kushinagar is being
herewith and marked as Annexure No.CA.1 filed herewith and marked as Annexure
to this counter affidavit. No.CA.4 to this counter affidavit.
7. That the answering respondent
further submits that as per the Civil 5. Thus, the case of respondent is
Services Regulation, 370, as applicable in that the petitioner has served in the
U.P./Services, rendered by the employee department for 9 years and 7 months and
in the Work Charge Establishment, shall as such, he could not be granted regular
not be counted for the purpose of pension pension because the petitioner has not
. The petitioner has worked in the regular completed 10 years in regular service
establishment for the post of Sinchpal therefore has not been given any pension.
from 1.7.1996 to 31.12.2006, and
therefore, he has served the department 6. Learned counsel for the petitioner has
for 9 years and 7 months, as such, he is placed various judgement of this Court to
not qualified to be granted regular contend that the petitioner is entitled for
pension, because the petitioner has not pension. He has referred various decision of
completed 10 years of regular services in this Court rendered in Writ -A No.17150 of
the department, which is condition 2015, Kedar Ram Vs. State of U.P. and 4
precedent. It is further stated that as per others and Special Appeal (Defective) No.264
the Government Order dated 1.7.1989, of 2013, State of U.P Vs. Prem Chandra
the petitioner is not entitled for the decided on 13.5.2013 against which Special
pension, because before his service have Leave Petition- C No.22271 of 2013, State of
been regularized in the regular U.P. Vs. Prem Chandra was dismissed on
establishment, the petitioner was working 17.1.2014 with the following orders.
3 All] Bandhu Prasad Vs. State of U.P. & Ors. 1263

" Delay condoned. entitled to the services benefits which are

Special leave petition is dismissed." admissible to regular employees under
the relevant rules. .''
7. He further placed reliance on
decision of Hon'ble Division Bench in Special (Emphasis supplied)
Appeal No.1891 of 2013, Parmatma Ram Vs.
State of U.P. and other against which Special 11. In this case decision of Punjab
Leave Petition (C) No.2255 of 2015, State of State Electricity Vs. Narata Singh (Supra)
U.P. Vs. Parmatma Ram, was dismissed on was also considered by Hon'ble Division
30.2.2015 with the following order:- Bench.

"Delay condoned. ''We are conscious that in Special

The special leave petition is Appeal Defective No.842 of 2013 (State of
dismissed. U.P. & Ors. Vs. Panchu) that was decided
The question of law is kept open." on 2 December 2013, a Division Bench,
after taking notice of the judgment of the
8. He further relied on a decision of Supreme Court in Narata Singh (supra),
Hon'be Apex Court in Punjab State observed that the rationale which
Electricity Board Vs. Narata Singh (2010) weighed with the Supreme Court should
4 SCC 317. also govern the provisions of the Civil
Service Regulations, but what we find
9. The submission is that the service from a perusal of the aforesaid judgment
rendered as work charge employee is liable of the Division Bench is that the decisions
to be counted for the purpose of completing of the Supreme Court in Jagjiwan Ram
10 years service and granting pension. (supra), Jaswant Singh (supra) and Kunji
Raman (supra) as also the Full Bench
10. However, in the judgement judgment of this Court in Pavan Kumar
rendered by Hon'ble Division Bench of this Yadav (supra) had not been placed before
Court in Jai Prakash Vs. State of U.P, 2014 the Court. These decisions of the Supreme
(ADJ) 382 (DB), wherein the judgement of Court and the Full Bench of this Court
Hon'ble Single Bench, whereby the writ leave no manner of doubt that in view of
petition which was filed for quashing the the material difference between an
order denying the benefit of service rendered employee working in a work charged
by the appellant in a work charge establishment and an employee working
establishment for computing the qualifying in a regular establishment, the service
service for grant of pension was dismissed, rendered in a work charged establishment
was under challenge. While dismissing the cannot be clubbed with service in a
special appeal the Hon'ble Division Bench regular establishment unless there is a
observed as under:- specific provision to that effect in the
'' It, therefore, follows from the relevant Statutes. Article 370(ii) of the
aforesaid judgements of the Supreme Civil Service Regulations specifically, on
Court that the work charged employees the contrary, excludes the period of
constitute a distinct class and they cannot service rendered in a work charged
be equated with regular employees and establishment for the purposes of payment
that the work charged employees are not of pension and we have in the earlier part
1264 INDIAN LAW REPORTS ALLAHABAD SERIES

of this judgment held that the decision of charge period for the purpose in the
the Supreme Court in Narata Singh regular establishment. In absence of any
(supra), which relates to Rule 3.17(i) of such Rules or Scheme the Hon'ble Apex
the Punjab Electricity Rules, does not Court did not find any merit to interfere
advance the case of the appellant. In this with the impugned judgement and the
view of the matter, the appellant is not Special Leave Petition was dismissed. In
justified in contending that the period of the present case also there are no Rules or
service rendered from 1 October 1982 to Scheme providing for grant of pension in
5 January 1996 as a work charged work charge establishment.
employee should be added for the purpose
of computing the qualifying service for 14. The other two decisions of
payment of pension." Hon'ble Apex Court, simply dismissing the
Special Leave Petition against the
12. The aforesaid judgement was judgements of this Court leaving this
challenged by the appellant Jai Prakash question of law open, are of no help to the
before Hon'ble the Apex Court by means petitioner in as much as this question as to
of filing Special Leave to Appeal (C) whether work charge period for the purpose
No.12648 of 2014, Jay Prakash Vs. State of pension in regular establishment as on
of U.P and others which was dismissed date stood affirmed by Hon'ble Division
with the following order dated 5.9.2014. Bench in the case of Jai Prakash ( Supra)
and S.L.P.-C No.12648 of 2014, Jai Prakash
'There is nothing on the record to Vs. State of U.P. as noted above.
suggest that any Rule or Scheme framed
by the State to count the work-charge 15. During course of arguments the
period for the purpose of pension in the learned counsel for the petitioner has also
regular establishment. In absence of any supplied a copy of this letter dated 7.1.2015
such Rule or Scheme, we find no merit to written by the Chief Engineer Irrigation
interfere with the impugned judgement. Department,Lucknow to Executive
Engineer Work Charge Establishment. The
The special leave petition is same is taken on record. This letter indicates
dismissed.' only this much that this demand to count
work charge period for grant of pension is
(Emphasis supplied) under consideration. Moreover it also
establishes that on the date of retirement of
13. In view of the aforesaid decision the petitioner i.e 31.1.2001 no such Rules or
of the Division Bench in the case of Jai Scheme framed by the State to count the
Prakash (Supra) wherein it has been work charge period for the purpose of
categorically held that the work- charge pension in the regular establishment was in
employees are not entitled to the benefit existence. Perhaps the same is still not in
which are permissible to regular existence. Be that as it may, at present no
employee under the Rules, which was such relief can be granted to the petitioner.
further affirmed by Hon'ble the Apex
Court holding that there is nothing on 16. The petition lacks merit and is
record to suggest any rule or scheme dismissed.
framed by the State to count the work --------
3 All] Fahim Baig Vs. State of U.P. & Ors. 1265

ORIGINAL JURISDICTION dated 17.3.2012 passed by the Up-Ziladhikari,

CIVIL SIDE Sadar, Azamgarh. The said order directs the
DATED: ALLAHABAD 21.09.2015 petitioner to vacate part of Arazi No.106
which is in his unauthorized occupation for
BEFORE
THE HON'BLE PANKAJ MITHAL, J.
the last two months failing which he would be
dispossessed from the same and the expenses
C.M.W.P. No. 16982 of 2012 for his dispossession shall be recovered from
him as arrears of revenue and a first
Fahim Baig ...Petitioner information will be lodged against him under
Versus Section 3/5 of the Prevention of Damage to
State of U.P. & Ors. ...Respondents Public Property Act, 1984.
Counsel for the Petitioner:
3. On the basis of the pleadings
Sri Dinesh Kr. Yadav, Sri A.R. Nadiwal
exchanged between the parties on record,
Counsel for the Respondents: the aforesaid land is the land of Gaon
C.S.C., Sri Amit Kumar Asthana, Sri Kripa Sabha recorded as manure pit which
Shanker Yadav, Sri M.N. Singh, Sri cannot be occupied by any person
Yatindra, Sri R.J. Shahi otherwise than with the permission of the
Gaon Sabha. The said land is not allotted
U.P.Z.A. & L.R Act-Section 123-B-Punishment to the petitioner and that he is in
for occupation of Gaon Sabha land-no eviction unauthorized occupation of the same.
proceeding ever initiated-against petitioner-
no question of re occupies-provisions of
Section 123-B not applicable-order quashed.
4. Learned Standing Counsel has filed
supplementary counter affidavit stating that
Held: Para-9 no proceedings under Section 122-B of the
In other words, the punishment and the U.P. Zaminari Abolition and Reformed Act,
procedure prescribed under Section 123-B of 1950 (hereinafter referred to as the 'Act')
the Act is to be followed after the proceedings were ever drawn against the petitioner for his
for eviction under Section 122-B have been
completed. Secondly, the provisions of
eviction from the said land. He also submits
Section 123-B of the Act are applicable only if that the petitioner was never evicted from the
a person re-occupies the land of the Gaon said land earlier.
Sabha after his eviction therefrom. It is not
the provision for punishment or eviction of 5. The impugned order is said to
unauthorized occupant in first instance.
have been passed by the authority concern
(Delivered by Hon'ble Pankaj Mithal, J.) in purported exercise of power under
Section 123-B of the Act. The aforesaid
1. Heard learned counsel for the provision provides for punishment for
petitioner and learned Standing Counsel occupation of the Gaon Sabha land and
appearing for respondents No.1 to 4. Notice for summary eviction of person who has
on behalf of respondent No.6 has been re-occupied Gaon Sabha land after his
accepted by Sri M.N. Singh. eviction. Section 123-B of the Act for the
sake of convenience is reproduced below:
2. The petitioner by means of this
writ petition has challenged the order "123-B. Punishment for occupation
of Gaon Sabha land. - (1) Where any
1266 INDIAN LAW REPORTS ALLAHABAD SERIES

person has been evicted under this Act initiation of proceedings by the Assistant
from any land vested in a Gaon Sabha, Collector and for passing order of eviction
and such person or any other person, of such unauthorized occupant.
whether claiming through him or
otherwise, thereafter occupies such land 8. A simple reading of Section 122-
or any part thereof without lawful B and 123-B of the Act reveals that it is
authority, such occupant shall be only after an order of eviction is passed
punishable with imprisonment for a term against the unauthorized occupant of the
which may extend to three years or with Gaon Sabha land and he is so evicted
fine or with both. therefrom under Section 122-B of the Act
that when he again occupies the Gaon
(2) Any Court convicting a person Sabha land, he can be punished with
under sub-section (1) may make an order imprisonment or fine or both and may be
for evicting the person summarily from summarily directed to be evicted from the
such land and such person shall be liable Gaon Sabha land under Section 123-B of
to such eviction, without prejudice to any the Act.
other action that may be taken against him
under any law for the time being in force. 9. In other words, the punishment
(3) Without prejudice to the and the procedure prescribed under
provisions of sub-section (1) and (2), the Section 123-B of the Act is to be followed
Collector may, whether or not a after the proceedings for eviction under
prosecution is instituted under sub-section Section 122-B have been completed.
and may for that purpose, use or cause to Secondly, the provisions of Section 123-B
be used such force as may be necessary of the Act are applicable only if a person
for evicting any person found in re-occupies the land of the Gaon Sabha
occupation thereof." after his eviction therefrom. It is not the
provision for punishment or eviction of
6. It provides that where any person unauthorized occupant in first instance.
has been evicted under the Act from any
land vested in Gaon Sabha and such 10. In view of the aforesaid legal
person or any other person claiming position, as it is no once case that the
through him occupies the said land petitioner after eviction under Section
without any lawful authority, he can be 122-B of the Act has reoccupied the Gaon
punished with imprisonment or fine or Sabha land, no order against him could
both. It further provides that the court have been passed under Section 123-B of
apart from convicting the person as the Act.
aforesaid may also make order for his
summary eviction and that the Collector is 11. In view of the aforesaid facts
authorised to retake the possession of and circumstances, the impugned order
such land. dated 17.3.2012 is not only illegal but is
also without jurisdiction and is
7. The manner of eviction of a accordingly quashed.
person in unauthorized occupation of the
Gaon Sabha land has been provided under 12. The writ petition is allowed.
Section 122-B of the Act. It provides for --------
3 All] Committee of Management, BDSUM Vidyalaya, Ballia & Anr. Vs. State of U.P. & Ors. 1267

ORIGINAL JURISDICTION the directions of this Court contained in

CIVIL SIDE the order dated 03.04.2014 passed in Writ
DATED: ALLAHABAD 21.07.2015 -C No. 15335 of 2014, C/M Sri Deena
Nath Tiwari Sanskrit Uchchattar
BEFORE
THE HON'BLE PANKAJ MITHAL, J.
Madhyamik Vidyalaya and another.

C.M.W.P. No. 17261 of 2015 3. In disposing of the above writ

petition this Court, had directed the
Committee of Management, BDSUM respondent no. 1 of the said writ petition
Vidyalaya, Ballia & Anr. ...Petitioner to consider the grievance of the
Versus
petitioners with regard to entitlement of
State of U.P. & Ors. ...Respondents
grant in aid after hearing the petitioners.
Counsel for the Petitioner:
Sri Gopal Ji Rai 4. One of the ground on which the
above order has been assailed is that without
Counsel for the Respondents: hearing the petitioners no order could legally
C.S.C. be passed on the basis of talk on the
telephone/mobile with the parties concern.
Constitution of India, Art.-226-Principle
of Natural Justice-refusal of grant in aid- 5. Learned Standing Counsel was
impugned order passed by adopting
unique method talking on mobile phone-
directed to file counter affidavit within
held-not fair-principle of Natural Justice four weeks on 01.04.2015, but till date no
violated-order quashed. counter affidavit has been filed.

Held: Para-14 6. Learned Standing Counsel after

In view of the aforesaid facts and
going through the impugned order is himself
circumstances, as the Principal Secretary
deviced a noval method of hearing which is surprised and submits that there appears to be
completely alien to the legal jurisprudence; no hearing in the matter and the Adjudication
failed to give any notice to the parties for Authority had simply talked with the parties
hearing fixing a date; and proceeded to talk on mobile. In such circumstances, the Court
about the matter with the parties on mobile may quash the order and sent the matter back
phone in the absence of the other, it is plain
for reconsideration.
and simple that he acted in utter violation
of the principles of natural justice and
against the doctrine of fair play in passing 7. The Court is surprised at the manner
the impugned order. in which the impugned order has been passed
by non else than a Senior Officer of the
(Delivered by Hon'ble Pankaj Mithal, J.) Indian Administrative Service holding the
post of the Principal Secretary.
1. The institution of the petitioners
has been refused grant in aid by the 8. The principles of natural justice are
impugned order dated 15.09.2010. the backbone of the any
administrative/judicial system. No order of
2. The said order has been passed by any administrative authority or the court of
Principal Secretary, Sanskrit Shiksha law can be sustained until and unless it has
Anubhag, U.P. Shasan, in pursuance of
1268 INDIAN LAW REPORTS ALLAHABAD SERIES

been passed following the principles of with the parties on mobile that he
natural justice. It is a cardinal principle of proceeded to pass the impugned order.
law that no one can be condemned unheard.
Therefore, it is fundamental to give 12. The conversation he had with the
opportunity of hearing to the litigating parties parties on mobile was not in presence of
before adjudicating their civil rights. This the other party. The said party could not
opportunity of hearing to the parties is not an have any idea or estimation of the
empty formality and has to be an opportunity conversation that took place between
in real sense. adjudicating authority and the other party
putting him to a loss to reply in defence.
9. In this context, it is pertinent to In this way, in effect no proper
note that the purpose of giving opportunity of hearing was given to the
opportunity of hearing is to give prior parties.
notice to the parties of the date fixed so
that the party affected may prepare 13. The Court hastens to add that an
himself on facts and the proposition of adjudicating authority in all fairness is not
law to answer the contention of the other supposed to talk or discuss any matter
party or the queries raised by the Court or which is before him for adjudication with
authority. No party can be taken by a any party much less the litigating party
surprise and asked to make submission outside the office or in the absence of the
without allowing sufficient time to enable other party.
him to prepare on the subject.
14. In view of the aforesaid facts
10. In addition to the above, it is and circumstances, as the Principal
cardinal to the principles of natural justice Secretary deviced a noval method of
that the hearing of any matter has to be in hearing which is completely alien to the
presence of the respective parties. The legal jurisprudence; failed to give any
adjudicating authority must ensure that notice to the parties for hearing fixing a
the contesting parties are present before date; and proceeded to talk about the
him when one of them is being heard to matter with the parties on mobile phone in
enable the other party to listen and make the absence of the other, it is plain and
effective reply. Any hearing in the matter simple that he acted in utter violation of
in the absence of the other party would the principles of natural justice and
again not be an effective hearing in true against the doctrine of fair play in passing
spirit of the principles of natural justice. the impugned order.

11. In the instant case, a plain 15. Accordingly, the impugned

reading of the impugned order, as has also order dated 28.10.2014 passed by the
been accepted by the learned Standing Secretary, Sanskrit Shiksha Anubhag,
Counsel, reveals that the adjudicating U.P., Lucknow is hereby quashed and a
authority had not given any notice to the writ of certiorari is accordingly directed to
parties fixing any date of hearing in the be issued with liberty to him to pass a
matter; rather he has simply chosen to fresh order in accordance with law, as
converse with the parties on their mobile. expeditiously as possible, preferably
It is only on the basis of the aforesaid talk within a period of six weeks from the date
3 All] Arvind & Anr. Vs. State of U.P. & Ors. 1269

of production of a certified copy of this prima facie amalgam of both, that the
order. firm in question has been put to loss and
has been cheated.

16. The writ petition is allowed with Case Law discussed:

no orders as to costs. 1992 (1) SCC 1; 2011 (7) SCC 59; (1996) 5
-------- SCC 591; 2008 (9) SCC 677; [2014 (4) SCC
ORIGINAL JURISDICTION 453]; [1994 (4) SCC 260].
CIVIL SIDE
DATED: ALLAHABAD 22.09.2015 (Delivered by Hon'ble V.K. Shukla, J.)
BEFORE 1. Petitioners who are two in number
THE HON'BLE V.K. SHUKLA, J.
are before this Court with a request to
THE HON'BLE ARVIND KUMAR MISHRA-I, J.
quash the FIR dated 16.07.2015,
Criminal Misc. Writ Petition No. 19074 of registered as Case Crime No. 362 of
2015 2015, under Sections 420, 467 ,468, 471,
406 IPC, Police Station Parta pur,
Arvind & Anr. ...Petitioners District Meerut and for sommanding the
Versus Respondents not to harass the petitioners.
State of U.P. & Ors. ...Respondents
2. Petitioners before this Court are
Counsel for the Petitioners:
stating that they are partners of M/s A.M.
Faizan Ahmad, S.F.A. Naqvi, Sri M.M.
Associates, a partnership firm that
Tripathi, Sri N.S. Mishra, Sri P.C. Dwivedi
functions in the name and style of M/s
Counsel for the Respondents:
O.S.G. Exim Services Private Limited.
A.G.A., Sri Anurag Khanna, Sri Sumit Said firm is engaged in providing and
Daga uploading all the required documents and
information of the export and bank
Constitution of India, Art.-226-quashing of realization details on the DGFT website
FIR-offence under section 420; 467, 468, and generate an application for obtaining
471, 406 IPC-argument that allegation the Licenses and acting as a liaison agent.
relates Civil in nature-no offence for Petitioners submit that Sharda Exports
criminal prosecution made out court
executed power of attorney in the name of
explained difference between civil and
criminal wrong-further apprehension of its employees namely Prabhash Chandra
harassment and foul investigation-SSP Sharma, the Manager as well as Gurnam
concern shall look into the matter-petition Singh, Senior Executive to be the
dismissed-till credible evidence there or till authorised signatory for signing of
submission of charge sheet-arrest stayed. application, Bank Realisation Certificates,
shipping bills and other documents
Held: Para-20
The difference between civil wrong and required for issuance and obtaining of the
criminal wrong turns on two different Focus Product Licenses and to make and
objects, for civil wrong, the wrong doer to make necessary amendments and
is not punished rather contrarily the changes in the document. Petitioners are
suffers gets a definite benefit from the stating that whatever activity has been
law, whereas for criminal wrong the
carried out by them, same has been at the
main object of law is to punish the
wrong doer. In the present case, there is instruction and directives of Prabash
1270 INDIAN LAW REPORTS ALLAHABAD SERIES

Chandra Sharma, Manager and Gurnam years by just changing sequences of

Singh, Senior Executive and Sharda partners/directors or by adding some new
Export has proceeded to lodge FIR by names by deleting previous names.
mentioning that petitioner nos. 1 and 2 Petitioners have proceeded to mention
who are allegedly operating a firm in the that no amount had been transferred un-
name and style of A.M. Associates in authorizedly, but on the directive of
connivance with Gurnam Singh, sold 56 authorised representative said exercise has
licences within a period of 5 years i.e. been undertaken.
from 2009-2014 and by such activity
Rs.4.50 Crores has been swindled as said 4. Supplementary affidavit has been
amount has been distributed amongst the filed on 25.08.2015 appending therein
relative of Gurnam either incash or in copy of the account of A.M. Associates
their accounts, whereas said amount was and copy of the account of Kotak
liable to be deposited in the account of Mahindra Bank Pvt. Ltd. and in the said
Sharda Exports, but the same was supplementary affidavit, it has been
misappropriated. In the FIR it has been submitted that there has been various cash
mentioned that sum of Rs. 60.35 lacs has transaction and on the asking for amount
been paid back to the informant by the has been deposited.
petitioners. Petitioners' submission is that
whatever transaction has been undertaken, 5. Another supplementary affidavit
same are valid transaction and in case first has been filed on 28.08.2015 mentioning
informant has any grievance, his therein that 40 licenses have been sold by
grievance should be with Gurnam Singh the petitioners and details of transaction
and as far as petitioners are concern, has also been sought to be provided for
unnecessarily in designed manner they giving therein net payable amount by the
have been arrayed as an accused in the petitioner is sum of Rs. 3.5 Crores,
present case and under threat they have whereas amount that has been paid is over
been forced to make payment of Rs. 60.35 and excess to the same.
lacs.
6. Counter affidavit has been filed
3. Supplementary affidavit has been on 07.09.2015 and therein it has been
filed on 14.08.2015 and therein once mentioned that under the powers
again same set of facts have been repeated conferred by Section 5 of the Foreign
that petitioners have nothing to do with Trade (Development & Regulation) Act,
the affair of Gurnam Singh, who is 1992 (No. 22 of 1992), the Central
actually employee of respondent no.4. In Government periodically notifies the
the said affidavit in question, statement of Foreign Trade Policy, for a period of 5
account have been appended to show that years. The Foreign Trade Policy for 2009-
regularly Sharda Exports made payments 2014 (hereafter as ("FTP") came into
to the petitioners firm and amount was effect on 27.08.2009. The Director
debited that was paid on behalf of Sharda General of Foreign Authority is an
Exports relating to fee and miscellaneous authority established under the Ministry
charges etc. It has been further mentioned of Commerce & Industry, created under
therein that Sharda Exports is partnership the above mentioned Act. It has been
firm, changes its character every five further mentioned that in order to promote
3 All] Arvind & Anr. Vs. State of U.P. & Ors. 1271

export and boost the Indian industry, the Customs) is required to furnished and
Central Government runs various upload details on the website of Central
promotional schemes. Sharda Exports is Board of Excise and Customs, after which
eligible for incentive, called the Duty a Shipping Bill is generated, in triplicate.
Credit Slip, under two such schemes, After the produce is exported, a
namely , Vikas Krishi and Gram Udyog Export Promotion copy of Shipping Bill is
Yojna and Focus Product scheme. The issued to the exporter by the Department
said Duty Credit Slip, also called Focus of Customs.
Product License, is issued by the Director A Bank Realisation Certificate is
General of Foreign Trade (hereinafter sussed by the banker once export
("DGFT"), after submission of documents remittances are received in foreign
and verification. The license is issued on currency.
the basis of the goods exported and the Thereafter, an application for
value of such exports. The benefit or obtaining the said License is generated
advantage which accrues to the License on-line through the DGFT website, after
holder under the Vikas Krishi and Gram filing required details of the export and
Udyog Yojna and Focus Product Scheme bank realization, and uploading of
is that the value/amount mentioned in the necessary documents.
License can be utilized for payment of The said application is required to be
import duty, as provided in paragraph signed by the authorised signatory after
3.17.5 of the FTP. Further, the said which a copy of all the above mentioned
licences can also be utilised to pay documents along with the duly signed
additional Customs Duty, as provided in application form and a covering letter, is
paragraph 3.17.6 of the FTP. The said required to be submitted in the DGFT
Licenses are freely transferable, according office.
to the provisions of FTP in paragraph Subsequent to verification of
3.17.4. It has been further mentioned that documents and issuance of the License by
there are two modes in which the Focus the DGFT, only the authorised personnel
Produce License can be obtained from the in whose favour an identity card is issued
office of DGFT, as prescribed in the by the DGFT )as mentioned above) can
Handbook of Procedures, Vol. 1(a part of collect license from the office of the
FTP)- first, a self addressed envelope with DGFT after presenting his identity card.
affixed stamps to be provided by the
Applicant and second, an identity card is 7. It has been further mentioned that
issued to the license issued by the DGFT contains
proprietor/partner/director/authorised the value of the license and the name in
employee of the exporter. The complete whose favour the said license is issued. It
process for issuance and obtaining said has also mentioned that A.M Associates
License from the office of DGFT is as was a liaison agent and its role was to
follows: provide and upload all the required
documents and information of the export
On export, a Commercial Invoice is and bank realization details on the DGFT
generated by Sharda Exports, on the basis website and generate an application for
of which the Custom House Agent obtaining the Licenses. Sharda Exports
(authorised by Central Board of Excise & executed a power of Attorney (annexed as
1272 INDIAN LAW REPORTS ALLAHABAD SERIES

Annexure No. 2 of the writ petition) in sold licenses arranged from third parties
favour of Gurnam Singh, Senior that the License number is manually
Executive and Mr. Prabhash Chandra, written by hand, in the transfer letters,
Manager to be the authorised signatory which clearly shows foul play and unfair
for signing of Applications, Bank dealing. It has been mentioned that after
Realisation Certificates, Shipping Bills fraudulently obtaining signatures on the
and other documents required for issuance blank transfer letters, Gurnam Singh
and obtaining of the Focus Produce forwarded the same to A.M. Associates.
Licenses, and to make necessary Thereafter, A.M. Associates created a
amendments and changes in the said false invoice (third document required for
document. The exporter in whose name transferring Licenses) showing A.M.
the said Focus Produce License is issued Associates as the seller of the License,
can transfer the license to any person. The thereby fraudulently and illegally having
following documents are required to all the documents required for selling of
transfer the said license. the Licenses. It is pertinent to mention
that the wrongful consideration received
1. Physical/printed Focus Produce by selling of licenses in illegal and
License. fraudulent manner, was received in the
2. An invoice, wherein the accounts of A.M. Associates, even though
percentage of face value at which the Sharda Exports were the rightful owners
license is being sold at , is mentioned by of the Licenses. After receiving the illegal
the transferor, and consideration, petitioners distributed the
3. A Transfer Letter duly signed by money amongst themselves, by giving
the Director/Partner/Proprietor of the Gurnam Singh's share to him in cash also
exporter, in whose favour the license was via bank transfer to Gurnam Singh
issued. ( The signature of such person on account and in the accounts of Gurnam
the transfer letter is to be duly attested by Singh's relatives. The details of such
the banker of the transferor) distribution and bank transfer are stated in
detail in the FIR. It is important to
8. It has been mentioned that in the mention that it is an admitted fact that the
present case, after obtaining the Focus petitioners have paid Rs. 60,35.000
Produce Licenses, Gurnam Singh (Rupees Sixty Lakhs Thirty Five
fraudulently obtained signature of the Thousand) to Sharda Exports. It is
partner of Sharda Exports on blank submitted that this act of returning the
transfer letters, which he alongwith the said amount by the petitioners is an
petitioners, used to commit cheating and admission of guilt. There is absolutely no
other illegal activities. Further in the reason for the petitioners to give such a
normal course of effecting transfer of big amount of money to Sharda Exports,
licenses, the License number of the Focus other than return the money which they
Produce License being transferred is have illegally and fraudulently taken from
typed in the Transfer letter, after which Sharda Exports. On the contrary, in
the said Transfer Letter is printed and normal course of business, it is the firm
thereafter signed by the Partner. However, which has to pay A.M. Associates for its
with respect to the 56 illegally sold services. This, it is abundantly certain that
licenses, as has been found in the illegally petitioners have engaged in illegal
3 All] Arvind & Anr. Vs. State of U.P. & Ors. 1273

activities, have returned Rs. 60,35,00/- of the first informant company, and once
out of guilt and for no other reason. clear cut offence is made out from the
reading of the FIR, no interference should
9. Para wise reply has also been be made.
given therein same set of fact has been
repeated, and the averments mentioned in 14. We have proceeded to examine
the writ petition has been disputed. the pleadings in question along with
contents of FIR and as far as FIR goes it
10. After pleadings mentioned clearly contains categorical statement of
above, have been exchanged, thereafter, fact that first informant firm has been
present writ petition has been taken up for engaged in the business of Carpet
final hearing/disposal with the consent of Exports, in the name and style of Sharda
the parties. Exports. In the said firm Gurnam Singh
had been performing and discharging his
11. Sri Madhu Mukul Tripathi, duty as Senior Executive and said
learned counsel for the petitioners Gurnam Singh in active collusion with the
contended with vehemence that in the petitioners, who are running the firm in
present case as far as petitioners are the name and style of A.M. Associates
concern, they have not committed any have illegally proceeded to sell 56
offence worth name and unnecessarily licenses and has swindled Rs. 4,50,00,000
petitioners' names have been dragged in Lacs based on the fictitious document and
the FIR and based on the same petitioners said amount has been transferred in the
have been forced to pay sum of Rs. account of A.M. Associates. Thereafter,
60,35,00/- and in case grievance of the entire amount has been transferred in the
first informant that any amount is due to name of Gurnam Singh and his relative,
be paid to him, then there is alternative whereas Gurnam Singh has no authority.
remedy of filing Suit, and lodging of FIR Once such fact has been mentioned in the
is misuser of criminal forum and as such FIR then the FIR on its face value does
this Court should come to the rescue of disclose prima facie cognizable offence.
petitioners by protecting their personal
interest. 15. The other side of the story
narrated by petitioners is that Sharda
12. Averments made on behalf of Exports had proceeded to issue "Transfer
the petitioners, has been resisted by of Debiting Credit Entitlement
learned A.G.A. by contending that FIR Certificate" and Focus Product License,
does discloses cognizable offence, as such authorising the petitioners. In the said
there is no occasion for this Court to certificate in question clear cut mention
entertain the request of petitioners. was made that said certificate has not
been transferred to anybody else and same
13. Sri Anurag Khanna, Senior will be property of said transferee and
Advocate, assisted by Sri Sumit Daga, Sharda Exports will have no right
Advocate on the other hand contended whatsoever on the above, it is irrevocable
that this is glaring case of fraud and confirmation certifications is also there,
manipulation made by the petitioners' that full and final compensation has been
firm in active collusion with the employee received and Sharda Export will have no
1274 INDIAN LAW REPORTS ALLAHABAD SERIES

lien over the same. Submission of the been stated that blank transfer letters were
petitioners is that once said documents got signed, and they have been misused
has been issued and said documents have by Gurnam Singh in active collusion of
been acted upon, then to say that any petitioners, as the name of parties in
offence is committed, is too for fetched. whose favour transfer has been effected
upon has been filled subsequently, by
16. From the side of first informant, hand, and said transfer letter could have
it has been sought to be contended that gone out of Sharda Export alongwith
after such Transfer of Debiting Credit invoice, and here admittedly no invoice
Entitlement Certificate and Focus Product note had been issued, rather said
License is prepared, and in case it is to be certificate in question along with debit
transferred, then it has to be preceded by note of A.M. Associates has been
invoice certificate, wherein full details transferred in favour of other company.
would be given such as License number, Consequently, once the first informant is
value of licence and part of registration accepting this fact that said transfer
etc. and thereafter, consignee is entitled to certificate bears signature of member of
get the same en-cashed. Here in the partner of Sharda Exports, but as it has
present case no invoice certificate has been alleged that Gurnam Singh has
been issued in favour of any consignee to succeeded in getting signature on blank
get aforementioned 56 licences, rather it transfer letter and said document has been
is reflected from the record in question passed on by Gurnam Singh to the
that A.M. Associates proceeded to petitioners and thereafter under covering
prepare debit note and based on the same debt note, same has been transferred. In
transfer in question have been acted upon. view of this, once element of cheating,
misappropriation and diversion of fund
17. As far as appending of signature has been attributed to Gurnam Singh then
on documents namely Transfer of the matter has to be investigated and what
Debiting Credit Entitlement Certificate has been the actual role played by the
and Focus Product License are concern, petitioners would also be reflected once
same has been accepted, but an attempt free/fair/transparent investigation is
has been made to dis-own the same by carried out.
contending that Gurnam Singh has
fraudulently obtained transfer letter of 56 19. Once such is the factual situation
licences. Thus, this much fact is admitted i.e. so emerging from the reading of FIR
that on 56 licenses that has been so that 56 licenses have been sold and this
issued, there is signature of partner that much is also clear that said amount has
has been got obtained by Gurnam Singh not reached in the account of company
and as to whether said Gurnam Singh has and defence of petitioners is that said
practised fraud, certainly same has to be amount has been transferred in the
subject matter of investigation. account as has been asked for by Gurnam
Singh, who has been dealing with the
18. Once such is the factual situation petitioners, then as to whether there has
that is so emerging from the reading of been any dis-honesty and petitioners have
FIR that transfer letter bears signature of been acting bonafide or not, certainly has
partner of Sharda Exports, and it has also to be matter of investigation.
3 All] Arvind & Anr. Vs. State of U.P. & Ors. 1275

20. The case in hand has prima facie 21. Petitioners' counsel has also
criminal taint, and does not fall in any of expressed apprehension, that local police
the category enumerated in the case of has not been acting fairly, as they have
State of Haryana Vs. Bhajan Lal 1992 (1) been illegally detained w.e.f. 11.11.2014
SCC 1, for exercising authority to quash to 14.11.2014 and were forced to pay Rs.
the FIR in quesdtion For recovery of the 60.35 lacs. Petitioners have stated that
amount Suit can always be filed, and case they have already requested for
in hand cannot be said to be dealing with free/fair/transparent investigation.
pure civil wrong, as has been in the case of
Joseph Salvaraj A Vs. State of Gujrat 22. Accordingly, in the facts of the case,
2011(7) SCC 59, wherein appellant failed we proceed to ask Senior Superintendent of
to pay sum of Rs. 10 Lacs as promised and Police, District Meerut, for ensuring
suit for recovery of money had already free/fair/impartial investigation, to nominate a
been filed. Here monetary loss has been officer of the rank of Dy. S.P. to supervise the
allegedly caused to the firm, for recovering on going investigation, so that truth comes on
the said amount suit is the remedy. The surface and the role played by petitioners in
difference between civil wrong and the transaction in questioned is also clear.
criminal wrong turns on two different
objects, for civil wrong, the wrong doer is 23. Learned counsel for the
not punished rather contrarily the suffers petitioners next contended that in the facts
gets a definite benefit from the law, of the case as criminal forum is being
whereas for criminal wrong the main misused the arrest of petitioners be stayed
object of law is to punish the wrong doer. by this Court.
In the present case, there is prima facie
amalgam of both, that the firm in question 24. Apex Court in the case of Hema
has been put to loss and has been cheated. Mishra Vs. State of U.P. and others [2014
Apex Court in the case of CBI Vs. (4) SCC 453] has considered the matter
Duncans Agro Industries Ltd. (1996) 5 and has clearly ruled therein that once
SCC 591 and Nikhil Merchant Vs. CBI request for quashing of the FIR is turned
2008(9) SCC 677 came to hold "that in a down then second prayer for according
given case, a civil proceeding and a interim order of staying arrest should not
criminal proceeding can proceed be accorded. In view of this, request that
simultaneously. Bank is entitled to recover has been so made on behalf of petitioners
the amount of loan given to the debtor. If to stay the arrest cannot be accepted by
in connection with obtaining the said loan, this Court.
criminal offences have been committed by
the person accused thereof including the 25. Petitioners' counsel next
officials of the Bank, criminal proceedings contended that petitioners would be
indisputably be maintainable". Once such mechanically arrested in the present case
is the factual situation i.e. so emerging even without there being any credible
from the reading of FIR, then to say that no evidence, connecting them with the crime
offence is made out, cannot be accepted, in in question.
view of this, request made for quashing of
FIR is turned down and certainly matter
26. Apex Court in the case of
has to be investigated.
Joginder Kumar Vs. State of U.P. [1994
1276 INDIAN LAW REPORTS ALLAHABAD SERIES

(4) SCC 260] has mentioned that law of heinous offences, an arrest must be
arrest is one of balancing individual avoided if a police officer issues notice to
rights, liberties and individual rights on person to attend the Station House and not
one hand and individual duties, to leave the Station without permission
obligations and responsibilities on other would do."
hand. The existence of power is one thing
and justification for exercise thereof is 27. Registration of FIR under
another. Arrest cannot be made in routine Section 154 Cr.P.C. and arrest of accused
manner. Para 20 of the aforesaid person under Section 41 are two entirely
judgment is quoted below: different concepts. Apex Court in
Criminal Writ Petition No. 68 of 2008
"No arrest can be made because it is Lalita Kumar vs. Government of U.P.
lawful for the police officer to do so. The decided on 12.11.2013 has clearly ruled
existence of the power to arrest is one that it is not correct to say that just
thing. The justification for the exercise of because FIR is registered, the accused
it is quite another. The police officer must person can be arrested immediately. In the
be able to justify the arrest apart from his said judgment itself, as to why legislature
power to do so. Arrest and detention in has consciously used the expression
police lock-up of a person can cause information in Section 154(1) of the Code
incalculable harm to the reputation and as against the expression used in Section
self-esteem of a person. No arrest can be 41(1)(a) and (g) where the expression
made in a routine manner on a mere used for arresting person without warrant
allegation of commission of an offence is "reasonable complaint" or "credible
made against a person. It would be information" has been dealt with as the
prudent for a police officer in the interest expression under Section 154(1) of Code
of protection of the constitutional rights of is not qualified by the prefix "reasonable"
a citizen and perhaps in his own interest or "credible". In the matter of arrest
that no arrest should be made without a various safeguards have been provided
reasonable satisfaction reached after some and once again Joginder Kumar (Supra)
investigation as to the genuineness and has been reiterated in paragraph 99.
bona fides of a complaint and a
reasonable belief both as to the person's 28. Authority to arrest without
complicity and even so as to the need to warrant has been conferred with the
effect arrest. Denying a person of his police officer under Chapter V Section 41
liberty is a serious matter. The of the Code of Criminal Procedure, and it
recommendations of the Police is for the police officer to decide as to
Commission merely reflect the what action is required to be taken while
constitutional concomitants of the effectuating arrest and certainly this
fundamental right to personal liberty and decision has to be taken on the basis of
freedom. A person is not liable to arrest material/information. In cognizable
merely on the suspicion of complicity in offences where maximum sentence is 7
an offence. There must be some years, arrest is not to be made in routine
reasonable justification in the opinion of manner, and provisions of Section 41 (1)
the officer effecting the arrest that such (b) and 41-A has to be complied with, and
arrest is necessary and justified. Except in in cases when there is credible
3 All] Akash Sharma Vs. State of U.P. & Ors. 1277

information of committing cognizable DATED: ALLAHABAD 03.09.2015

offence punishment with imprisonment of
term for more than 7 years whether or BEFORE
THE HON'BLE PANKAJ MITHAL, J.
without fine or with death sentence and
the police officer has reason to believe
Writ-C No. 20863 of 2015
that such person has committed the said
offence arrest can be effectuated Akash Sharma ...Petitioner
straightway. In reference of the offence Versus
committed, information received, it is the State of U.P. & Ors. ...Respondents
police officer, who has to decide as to
what offence has been committed by the Counsel for the Petitioner:
accused and as to whether arrest is Jeet Bahadur Singh
warranted in the facts of the case, and as
to what criteria is to be adhered to. In case Counsel for the Respondents:
any infringement of law is there in C.S.C.
effectuating arrest, the Magistrate
U.P. Intermediate-Education Act 1921,
concerned, before whom accused is Chapter-III-Regulation-7-Rectification
produced for remand, can remedy the of date of birth-petitioner appeared in
grievance, so raised by the arrested High School examination 2007-in
person, at the point of time of according certificates cum mark sheet date of birth
remand under Section 167 Cr.P.C. recorded 01.01.90-while school record
show 01.01.93-rejected on time barred
ground-held-illegal-limitation is provided
29. Consequently, keeping in view for candidate-and not for authorities
the peculiar facts and circumstances of the concern-by exercising inherent power-
case and the factum alleged that no such clerical mistake ought to have
credible evidence worth name is available corrected-order impugned base upon
against petitioners, we proceed to pass an without application of mind-quashed.
order that investigation may go on and Held: Para-19
petitioners shall extend full cooperation in The Regional Secretary of the Board has
the investigation and shall not hamper simply rejected the application of the
with the investigation, but pursuant to petitioner on the ground of limitation
impugned FIR dated 16.07.2015, without application of mind to the facts
registered as Case Crime No. 362 of and circumstances of the case. Thus, he
failed in discharge the pious obligation
2015, under Sections 420, 467, 468, 471, to rectify the mistake occurring in the
406 IPC, Police Station Partapur, District public record which are supposed to
Meerut, petitioners may not be arrested maintain correctly.
till credible evidence is collected or till
submission of police report under Section Case Law discussed:
173 (2) Cr.P.C., whichever is earlier. (1998) 7 SCC 123

(Delivered by Hon'ble Pankaj Mithal, J.)

30. With these observations, writ
petition is disposed of. 1. Heard learned counsel for the
--------
ORIGINAL JURISDICTION
petitioner and learned Standing Counsel
CIVIL SIDE for the respondents no. 1 and 2.
1278 INDIAN LAW REPORTS ALLAHABAD SERIES

2. The petitioner by means of this writ 7. In the background of the aforesaid

petition is seeking a direction upon the facts, the contention of the petitioner is
respondents to correct his date of birth as that his actual date of birth is 01.01.1993
appearing in his High School Certificate of and it also appears in the records of the
2007. He has also prayed for quashing of School/College as well. The Board of
the order dated 21.10.2014 issued by the High School and Intermediate Education
Regional Secretary, Madhyamik Shiksha U.P., however, in issuing the certificate-
Parishad, Regional Office, Meerut, refusing cum-mark-sheet to the petitioner has
to correct his date of birth in the High committed a clerical mistake in
School Certificate on the ground of mentioning it to be 01.01.90. Therefore,
limitation. the date of birth of the petitioner as
appearing in the High School Certificate
3. The facts are not in dispute that is liable to be corrected, accordingly.
the petitioner appeared in the High School
Examination of the year 2007 as a regular 8. The application of the petitioner
student of Shrimad Brahmanand Inter for correction of his date of birth in the
College, Ramghat Road, Aligarh High School Certificate has been rejected
conducted by the Board of High School on the ground that it has been moved after
and Intermediate Education U.P. more than two years of the issuance of the
certificate.
4. The certificate-cum-mark-sheet of
the said examination was issued to the 9. Learned Standing Counsel
petitioner on 05.06.2007. The said submits as the Regulation provides for
certificate mentions 01.01.90 as the date applying for the correction of the
of birth of the petitioner. certificate within a period of 2 years of
the issue of the certificate, there is no
5. The petitioner after passing High illegality in rejecting the application of
School obtained Transfer Certificate as the petitioner.
well as Character Certificate from the
above institution. Both the above 10. It is not disputed that the
certificates mentions 01.01.93 as his date petitioner had not applied for correction
of birth. The petitioner, thereafter, passed of his date of birth as appearing in the
Intermediate from Dharam Samaj High School Certificate immediately on
College, Aligarh, and took Transfer receipt of the certificate, rather the
Certificate for the purposes of further application was filed on 01.10.2012, i.e.,
studies from that institution also. His date after about five years of issuance of the
of birth in the said certificate is again certificate.
mentioned as 01.01.1993.
11. Regulation-7 of Chapter-III of
6. The institution, from where the the Regulations framed under the
petitioner appeared in the High School Intermediate Education Act, 1921
Examination has certified that the correct provides for a limitation of two years for
date of birth of the petitioner is seeking correction in the High School
01.01.1993 as per the record of the Certificate which has now been increased
school. to three years. The said Regulation as in
3 All] Akash Sharma Vs. State of U.P. & Ors. 1279

existence at the relevant time reads as to rectify the mistake, if any, that may
under:- occur in the certificate so issued provide
the mistake is genuine and the person
fofu;e &-7 concern has no role attached to it.
lfpo ifj"kn dh vksj ls lQy mEehnokjksa dks Therefore, any mistake of a clerical nature
ifj"kn dh ijh{kk esa mRrh.kZ gksus dk izek.k&i= accruing in the certificates can be rectified
fofgr izi= esa nsxk vkSj ckn esa mldh izfof"V;ksa esa on the application of the candidate
dksbZ 'kqf) djsxk] c'krsZ fd izek.k&i= esa fdlh ,slh concern or even by the authority concern
xyr izfof"V fdlh vfopkfjr fyfidh; Hkwy ;k yksi in suo motu exercise of its inherent power
ds dkj.k ;k fdlh ,slh fyfidh; Hkwy ds dkj.k dh whenever the mistake comes to its notice.
x;h gks] tks vlko/kkuh ls ifj"kn ds Lrj ds ;k ml
laLFkk ds tgkWa ls vfUre ckj f'k{kk izkIr dh gks Lrj In other words, any mistake in the High
ij vfHkys[k esa gks xbZ g¨A- ;g 'kqf) lfpo }kjk School Certificate can always be rectified
mlh fLFkfr esa dh tk ldsxh] tcfd vH;FkhZ us either on an application by the person
lEcfU/kr ijh{kk ds izek.k&i= ifj"kn }kjk fuxZeu concern or by the authority/Board itself in
dh frfFk ls nks o"k± ds vanj gh fyfidh; =qfV dh suo- motu exercise of its inherent power.
vksj /;ku vkd`"V djrs gq;s lEcfU/kr
iz/kkukpk;Z@dsUnz O;oLFkkid dks =qfV ds la'kks/ku 15. The limitation of moving an
gsrq izkFkZuk&i= izLrqr dj fn;k gks vkSj mldh izfr application for rectification of the mistake
iathd`r Mkd ls lfpo] ifj"kn dks Hkh izsf"kr dh gksA of a clerical nature appearing in the High
School Certificate is for the candidates
12. A bare reading of above and not for the Board to take suo-motu
Regulation indicates that the clerical action in exercise of inherent power.
mistake occurring in the certificate, issued
by the High School and Intermediate 16. The law of limitation is founded
Education Board U.P. is rectifiable on public policy so as to limit the life
provided the candidate applies for its span of a litigation or the legal remedy. It
correction within a period of two years does not aims to defeat the rights of the
from the date of issuance of the parties. In the case of N. Balakrishnan vs.
certificate. M. Krishnamurthy,; (1998) 7 SCC 123 the
Supreme Court of India observed if the
13. It is important to note that it is remedy availed by the party who has been
not the case of any party that the mistake wronged does not smack of malafides or
of date of birth appearing in the High is not by way of dilatory tactics, the
School Certificate of the petitioner had Courts must show utmost consideration to
occurred due to any mistake on the part of the suitor. In other words, a bonafide
the petitioner or that his correct date of delay may not by itself be treated as
birth is not 01.01.93 as appears in the sufficient to debar the remedy particularly
records of the School/College, meaning where the record exfacie shows
thereby the correct date of birth of the miscarriage of justice.
petitioner is 01.01.93 and not 01.01.90 as
mentioned in the High School Certificate. 17. In the instant case, there is no
dispute that the correct date of birth of the
14. An authority vested with the petitioner is 01.01.1993 and that in the
jurisdiction to issue a certificate and to High School Certificate it has been
maintain record of it has inherent power incorrectly mentioned as 01.01.90.
1280 INDIAN LAW REPORTS ALLAHABAD SERIES

18. The limitation of two years jurisdiction so vested in him in law in

provided in applying for rectification of passing the order dated 21.10.2014. Thus
the certificate is applicable to the the said order is quashed and the writ
candidates but there is no limitation for petition is allowed with a direction to the
the Board to exercise its inherent power to Secretary, Board of High Schools and
correct the certificate issued by it. Thus, Intermediate Education U.P. to verify the
the Board certainly in exercise of its suo record and, to correct the High School
motu inherent power is authorised to Certificate of 2007 as issued to the
correct a clerical mistake or error petitioner by mentioning his correct date
appearing in the High School Certificate of birth therein in exercise of his inherent
once it is brought to its notice. It is power within a period of three months
incumbent duty of the Board to ensure from the date of production of a certified
that the certificates issued by it are correct copy of this order.
and does not suffer from any error or
mistake. Therefore, in order to put its 21. The writ petition is allowed but
records straight, the Board is under an the parties shall bear their own costs.
obligation to correct all certificates issued --------
by it irrespective of the limitation placed
under Regulation-7 of Chapter-III of the
Regulation in exercise of its inherent
power in the particular facts and
circumstances of the each case. The law
of limitation cannot be pressed into
service by the Board while exercising its
inherent power so as to defeat the right of
the petitioner to have his incorrect date of
birth recorded in the High School
Certificate rectified.

19. The Regional Secretary of the

Board has simply rejected the application
of the petitioner on the ground of
limitation without application of mind to
the facts and circumstances of the case.
Thus, he failed in discharge the pious
obligation to rectify the mistake occurring
in the public record which are supposed to
maintain correctly.

20. Accordingly, even if the

application of the petitioner was beleted
the Board ought to have corrected the
mistake in exercise of suo-motto
jurisdiction. The Regional Secretary of
the Board has failed to exercise the